Rajasthan High Court - Jaipur
Shiv Nath Singh vs State on 30 April, 2024
Bench: Manindra Mohan Shrivastava, Shubha Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D. B. Civil Writ Petition No. 2364/1999
Shivnath Singh son of Shri Ratan Singh, aged 45 years, Resident
of Sutharpara, Jaisalmer, Constable No. 372, Police Lines,
Jaisalmer.
----Petitioner
Versus
1. State of Rajasthan through Secretary to the Government
and Commissioner Home Affairs, Rajasthan, Jaipur.
2. The Director General Police-Cum-Inspector General Police,
Rajasthan, Jaipur.
3. The Dy. Inspector General of Police, Jodhpur Range,
Jodhpur.
4. The Rajasthan Civil Services Appellate Tribunal, Jaipur,
through its Registrar.
----Respondents
For Petitioner : Mr. Pradeep Singh Advocate. For Respondents : Mr. Udit Sharma Advocate on behalf of Mr. Rajesh Maharshi Additional Advocate General.
HON'BLE THE CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA HON'BLE MRS. JUSTICE SHUBHA MEHTA (V.C.) Order Reportable Pronounced on 30/04/2024 (Per Hon'ble the Chief Justice):
1. By this writ petition under Article 226 read with Article 227 of the Constitution of India, the petitioner, while assailing the correctness, legality and validity of order dated 29.01.1996 passed by Rajasthan Civil Services Appellate Tribunal, Rajasthan, Jaipur (hereinafter referred to as 'the Tribunal'), has also assailed constitutional validity of Rules 27, 29 and 30 of the Rajasthan Police Subordinate Service Rules, 1989 (hereinafter referred to as (Downloaded on 02/05/2024 at 08:41:24 PM) (2 of 37) [CW-2364/1999] 'the Rules of 1989') as also syllabus (Appendix 'A' and Appendix 'B') issued vide Permanent Order No. 6/90 dated 10.09.1990.
2. The factual matrix relevant and necessary for decision of the controversy involved in this petition is stated ad infra:
The petitioner was initially appointed as Police Constable in the year 1969, on which post he continued when he was considered for promotion to the next higher post of Head Constable in the year 1990-91. The scheme of examination, as provided under the Rules of 1989, comprised of written test, practical, parade and other outdoor tests as also interview and examination of service record including Annual Confidential Reports. The petitioner, however, could not succeed as promotion orders issued on 22.01.1991 and 04.02.1991 did not include his name. Aggrieved by the non-promotion, the petitioner preferred an appeal before the Tribunal, which came to be rejected on 29.01.1996. Aggrieved by the aforesaid orders, the petitioner has filed present writ petition. While assailing the correctness, legality and validity of the action of the respondents in holding him unsuitable for promotion and the Tribunal rejecting appeal of the petitioner, the petitioner has chosen to challenge the criteria for selection for promotion as provided under the Rules of 1989.
3. Learned counsel for the petitioner submitted that Rule 27 and Rule 29 of the Rules of 1989 are ultra vires Articles 14 and 16 of the Constitution of India on the test of reasonableness. As the interviews are not done in other services, i.e., State Services, Subordinate Services or Ministerial Services in the matter of promotion, such scheme of interview has been framed under the (Downloaded on 02/05/2024 at 08:41:24 PM) (3 of 37) [CW-2364/1999] Rules of 1989. In all other service rules, in the lower rungs of hierarchy, promotions are ordinarily made on the basis of seniority-cum-merit and, therefore, provision for interview in the case of promotion from the post of Constable to Head Constable is arbitrary, illegal, unjust and unreasonable.
4. It is further argued that sub-rule (2) of Rule 27 of the Rules of 1989 is arbitrary as it does not prescribe separate marks for each of the nine factors of merit to be assessed by the Selection Board while interviewing a candidate and rather lump sum total marks have been allotted for interview in the syllabus which has the effect of conferring arbitrary and unfettered powers to the Selection Board and it's members to award marks on whims and caprice rather than on objective criteria.
5. Learned counsel for the petitioner argued that prescription of 40 marks for interview alone in Part-II of the qualifying examination is arbitrary in view of the settled judicial pronouncements. The rule is otherwise also arbitrary because there is no need of duplicacy in assessment of the factors laid down in Rule 27(2) of the Rules of 1989 while interviewing the candidates by the Selection Board inasmuch as all these factors could very well be judged from perusal of the Annual Confidential Reports or personal record of the candidates.
6. It is argued that Syllabus "Appendix A" prescribed by Respondent No. 2 vide order dated 10.09.1990 is also illegal as it goes out of the scope of the criteria of seniority-cum-merit as also on other grounds. Learned counsel further argued that Rule 30 of the Rules of 1989, which prescribes passing of Promotion Cadre (Downloaded on 02/05/2024 at 08:41:24 PM) (4 of 37) [CW-2364/1999] Course is also equally bad and arbitrary on the same grounds on which validity of Rule 27 and Rule 29 of the Rules of 1989 has been assailed.
7. Prescription of minimum marks and aggregate marks under sub-rule (1) and sub-rule (2) of Rule 27 of the Rules of 1989 gives unfettered powers to the Selection Board for eliminating even those who are able to perform fairly or average to good standards.
Providing a very tough and hard standard in the matter of promotion from the post of Constable to the post of Head Constable is unwarranted as the basic qualification for direct recruitment to the post of Constable is only Secondary or Xth Class pass or equivalent.
In addition, following grounds have also been urged to assail the correctness and validity of the order passed by the Tribunal:
(a) The performance of the petitioner, wherein he secured (49 ½ + 41 ½) 45 ½ % marks in qualifying examination Part-I and 43% marks in Part-II except interview part entitled him to be rated as average and he being one of the senior most Constables, deserves to be promoted on the application of criteria of seniority-cum-
merit.
(b) Even though the petitioner has correctly answered all questions, he was only awarded 10 marks out of 40 marks in interview. Though specific ground was taken by the petitioner in the appeal that marking was not done by individual member of the Selection Board according to factors (i) to (ix) as noted in Rule 27(2) of the Rules of 1989, the Tribunal has not dealt with this specific ground.
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(5 of 37) [CW-2364/1999] 8. Learned counsel for the petitioner, in support of his
arguments, placed reliance upon the judgments of the Hon'ble Supreme Court in the cases of Ashok Kumar Yadav & Others etc. etc. Vs. State of Haryana & Others etc. etc., AIR 1987 SC 454; Vikram Singh & Another Vs. The Subordinate Services Selection Board, Haryana & Others, AIR 1991 SC 1011; Uttar Pradesh Secondary Education Service Commission Vs. Smt. Santosh Chowdhary and Others, 1990 (Supp) SCC 711 and decision of Single Bench of this Court in the case of Het Ram Dudi Vs. State of Rajasthan & Another, 1992 (3) WLC (Raj.) 726.
9. Per contra, learned counsel appearing on behalf of the respondents, at the outset, submitted that the issue raised in this writ petition, insofar as challenge to the validity of the provision with regard to viva voce is concerned, is no longer res-integra as the same has been answered in negative by Division Bench of this Court in the case of Rajbala Choudhary Vs. The State of Rajasthan & Others (D.B. Civil Writ Petition No. 4555/2013 decided on 06.12.2017). Prescription of 40 marks for interview out of 75 marks combined for interview and assessment of service record including Annual Confidential Reports, if taken together with the marks prescribed in Part-I of the qualifying examination comprising of written test, practical, parade and other outdoor tests, cannot be said to be highly excessive and unreasonable. Interview is not the main criteria for promotion, but only an additional/supplemental criteria for making an overall assessment of suitability in the matter of promotion in Police Department. The (Downloaded on 02/05/2024 at 08:41:24 PM) (6 of 37) [CW-2364/1999] petitioner having not raised any demur and having participated in the process of selection, now cannot turn around to challenge the selection process and criteria for promotion as prescribed under the statutory rules which are binding. The petitioner filed appeal against rejection of his case for promotion and, therefore, by filing present writ petition, the selection process as provided under the Rules of 1989 is not open to attack at the instance of an unsuccessful candidate. The nature of duties and functions required to be performed in a disciplined force like the Police is different from other services in the State and, therefore, it cannot be said that in all cadres of public employment, irrespective of nature of duties and functions, the criteria of selection must be identical and that should not include provision of interview.
10. Learned counsel for the respondents argued that case of the petitioner for promotion was considered by the Selection Board comprising of senior police officials. His entire service records were looked into. Performance of the petitioner in written test and physical test was also fairly assessed. As the petitioner failed to secure minimum aggregate marks prescribed under the Rules of 1989, he could not be promoted. In the absence of there being any allegation of mala fides, challenge to the selection process by the petitioner before this Court amounts to invoking writ jurisdiction so as to substitute opinion of the Court to that of experts. This, in view of the settled legal position, is not permissible in the law.
11. We have heard learned counsel for the parties and perused the records.
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12. It is quite apparent that the petitioner, in the matter of appointment, promotion and other terms and conditions of service, is governed by the Rules of 1989. Part-V of the Rules of 1989, consisting of Rule 26 to Rule 33, provides for procedure for appointment by promotion. The petitioner appeared in the examination with full notice and knowledge that the rules prescribed particular criteria for promotion and Appendix 'A' and Appendix 'B' introduced vide order dated 10.09.1990 prescribed syllabus for qualifying examination comprising of written test, practical, parade and other outdoor tests as also interview with specified marks. The petitioner, however, did not raise any challenge, nor lodged any protest with regard to the eligibility criteria for selection for promotion, scheme of examination, or even the scheme providing for marks for interview or minimum qualifying marks in Part-I and Part-II examinations in order to become suitable for promotion. It was only when the petitioner could not get selected, he filed an appeal before the Tribunal where also he lost. While challenging the order passed by the Tribunal and the action of the respondents holding him unsuitable for promotion, the petitioner has chosen to challenge the validity of the Rules of 1989.
13. Even though we are of the view that having not challenged the process of selection and eligibility criteria, the petitioner after having participated in the process of selection without any protest, cannot be allowed to turn around and challenge the selection process merely because he has failed, as the provision with regard to prescription of interview marks has been challenged as violative (Downloaded on 02/05/2024 at 08:41:24 PM) (8 of 37) [CW-2364/1999] of Articles 14 and 16 of the Constitution of India, we propose to examine the merits of the contention.
14. Rules of 1989 have been framed by the Governor of Rajasthan in exercise of the powers conferred under proviso to Article 309 of the Constitution of India, governing the recruitment to posts and the conditions of service of persons appointed to the Rajasthan Police Subordinate Service. Rule 2(a)(vi) of the Rules of 1958 provides for the Superintendent of Police District concerned to be the appointing authority for the posts of constables and Head Constables in General Duties Branch of Police, Tele-Communications and Mechanical Transport Branch in the District. When this rule is read with Rule 2(k) and Rule 2(p) of the Rules of 1958, that would clearly indicate that in the matter of promotion from the post of Constable to the post of Head Constable, the Rules of 1989 would be applicable. Part-III of the Rules of 1989 deals with recruitment and Rule 6(b) thereof provides for promotion as one of the methods of recruitment. Part-IV of the Rules of 1989 provides for procedure for direct recruitment and Part-V of the Rules of 1989 deals with procedure for appointment by promotion. While Rule 26 of the Rules of 1989 lays down eligibility criteria for promotion, Rule 27 to Rule 33 of the Rules of 1989 read with Schedule-I appended to the Rules of 1989 are self contained code with regard to scheme of promotion. Rules 27, 29 and 30 of the Rules of 1989, which have been assailed in this petition, read as below:
"27. Procedure of selection.- (1) After the vacancies to be filled by promotion have been determined under rule 10, the Board as referred to in sub-rule (3) below shall be constituted. The Board (Downloaded on 02/05/2024 at 08:41:24 PM) (9 of 37) [CW-2364/1999] shall prepare correct and complete list containing names not exceeding three times the number of vacancies out of the senior most eligible members of service, who have passed Part-I of the qualifying examination, specified in rule 29, by obtaining 40% marks in Parade, Practical and other Out-door test and 40% marks in written test with 45% marks in aggregate for promotion to the class of post concerned.
(2) The Boards constituted under this rule shall consider the cases of all the persons included in the list, interviewing all of them and shall prepare a list containing names of suitable candidates in order of seniority, who secure 45% marks in qualifying examination, Part-II and 50% aggregate of the total marks of the qualifying examination, Parts I & II, upto equal number of such posts as are specified by Director General-cum-Inspector General of Police from time to time and as are determined to be filled under rule 10.
In interviewing candidates for promotion regard shall be held to the following factors that:-
(i) they have passed Part-I qualifying examination.
(ii) their previous record of service (good and bad entries).
(iii) integrity.
(iv) intelligence, tact and energy.
(v) technical and general knowledge.
(vi) experience and efficiency.
(vii) personality and character.
(viii) physical fitness and capacity to discharge duties of the post to which promotion is to be made including aptitude to undertake extensive tours; and
(ix) practical knowledge of law and procedure.
(3) Constitution of Selection Boards:-
(a) For promotion to the post of Head Constables:-
(i) Dy. I.G .of Police - Chairman (ii) Supdt. of Police/ Commandant of the District / - Member Unit Concerned. (iii) One Addl. S.P. outside the Range concerned - Member to be nominated by DGP.
(b) For the promotion to the post of A.S.I. :-
(i) Dy. I.G. or Police, Range/ Unit or an officer or - Chairman equivalent rank.
(ii) Supdt. of Police/Commandant of the District/ - Member Unit concerned.
(iii) One S.P./Commandant from outside the Range to - Member be nominated by DGP.
(c) For promotion to the post of Sub-Inspectors/ Platoon Commanders:-
(i) Inspector General of Police - Chairman
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(ii) Dy. Inspector. General of Police - Member
(iii) One Supdt. of Police/ Commandant - Member-Secretary
(d) For promotion to the post of Inspectors/Company
Commanders:-
(i) Inspector General of Police - Chairman
(ii) Two Dy. Inspector General of Police - Members
(iii) One Supdt. of Police/Commandant - Member
Secretary
(e) For promotion to the post of Head Constables and Asstt. Sub- Inspectors Police-Telecommunications:-
(i) Dy. Inspector General of Police. - Chairman (ii) Director, Police Telecommunications. - Member (iii) One Technical expert - Member (iv) One Supdt. of Police - Member-Secretary:
Provided that in case when Dy. IGP is holding the charge of Director, Police Tele-communications he shall be the Chairman of the Board.
(f) For promotion to the rank of Inspectors/Sub-
Inspectors/Supervisors and Sub-Inspectors of Police Tele- Communications:-
(i) Inspector General of Police - Chairman
(ii) Dy. Inspector General of Police - Member
(iii) One Technical Expert - Member
(iv) Director, Police Tele-Communications. - Member-Secretary Note:- All Boards shall be constituted by the Director General-
cum-Inspector General of Police.
(4) For conducting examinations of courses conducted by the Directorate of Training for Police-Tele-Communications as mentioned in the Scheduled-I appended to the Rules, the Director General-cum-Inspector General of Police shall constitute a Board for conducting examination for various training courses meant for the post of Inspectors. The remaining Board shall be constituted by the concerned Inspector General of Police. (5) All candidates included in the lists prepared by the various Boards under sub-rule (3) above including the candidates nominated under rule 28 shall be required to undergo the prescribed promotion cadre course, for which the candidates shall be nominated in accordance with seniority:
Provided that such candidates as have been unable to attend or complete the promotion cadre course, for reasons beyond their control, shall be allowed to attend the next promotion cadre without incurring any loss of seniority.(Downloaded on 02/05/2024 at 08:41:24 PM)
(11 of 37) [CW-2364/1999] Explanation:- In case any question arises as to whether a candidate could not proceed for promotion cadre course or complete it for reasons beyond his control the decision of the Appointing Authority for the post for which the promotion cadre course is to be held, shall be final.
(6) Names of the candidates who have failed to successfully complete the promotion cadre course on first attempt shall be given one more chance for passing the Promotion Cadre Course examination and their interse seniority or successfully completing the course would remain intact.
(7) The candidates who fail to attend/complete the promotion cadre course when nominated or who are unable to successfully complete the promotion cadre course as per provisions of sub-
rules 5 & 6 shall not be eligible to undergo another promotion cadre course except on the basis of the recommendations of a new promotion Board.
(8) The approved list so prepared, shall come into force only, when persons of previous approved list, have been appointed.
29. Qualifying Examination for "Promotion"- (1) Qualifying examination for promotion means and includes- Part-I : Written, Practical, Parade and other outdoor tests. Part-II: Interview and Examination of service record, including Annual Confidential Reports.
(2) The syllabus for Part-I examination and general instructions in respect of Part-II shall be determined and issued by the Director General-cum-Inspector General of Police from time to time. (3) The various Boards referred to in Sub-rule (3) of Rule 27 shall fix the dates and places of examinations. The names of candidates who have been found fit to undergo promotion cadre course, shall be announced by the Chairman of the Board after finalisation of the results and a list containing the names of such candidates shall be forwarded to the Appointing Authority as well.
30. Promotion Cadre Course- (1) The Promotion Cadre Course for various ranks shall be conducted at the training institutions as may be decided by the Director General-cum-Inspector General of Police from time to time.
(2) The Promotion Cadre Course shall be of such duration and shall have such Syllabus as may be approved by the Director General-cum-Inspector General of Police from time to time. In the Promotion Cadre Course due emphasis shall be laid down for indoor and outdoor work.
(3) The Promotion Cadre Course examination shall be conducted by such Board as may be constituted by the Director General- cum-Inspector General of Police for the purpose." (Downloaded on 02/05/2024 at 08:41:24 PM)
(12 of 37) [CW-2364/1999]
15. For the purpose of filling up the vacancies by way of promotion, the Board is required to be constituted which shall prepare correct and complete list containing names not exceeding three times the number of vacancies out of the senior most eligible members of service. The eligibility criteria for inclusion in the list is as below:
(i) the candidate must have passed Part-I of the qualifying examination, specified in Rule 29, by obtaining 40% marks in Parade, Practical and other Out-door test;
(ii) The candidate must have obtained 40% marks in written test;
and
(iii) the candidate must have obtained 45% marks in aggregate.
Rule 27 of the Rules of 1989 also provides that the Board constituted under that rule shall consider the cases of all the persons included in the list, interview all of them and shall prepare a list containing names of suitable candidates in order of seniority, who secure 45% marks in qualifying examination, Part II and 50% aggregate of the total marks of the qualifying examination, Parts I and II upto equal number of such posts as are specified by the Dirctor General-cum-Inspector General of Police from time to time and as are determined to be filled under Rule 10 of the Rules of 1989.
Further, for the purpose of interviewing the candidates for promotion, regard shall be held to the following factors:
(i) they have passed Part-I qualifying examination.
(ii) their previous record of service (good and bad entries).
(iii) integrity.(Downloaded on 02/05/2024 at 08:41:24 PM)
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(iv) intelligence, tact and energy.
(v) technical and general knowledge.
(vi) experience and efficiency.
(vii) personality and character.
(viii) physical fitness and capacity to discharge duties of the post to which promotion is to be made including aptitude to undertake extensive tours; and
(ix) practical knowledge of law and procedure.
16. Rule 29(1) of the Rules of 1989 provides that qualifying examination for promotion means and includes Part-I which consists of written, practical, parade and other outdoor tests and Part-II which consists of interview and examination of service record, including Annual Confidential Reports.
Rule 29(2) of the Rules of 1989 provides that the syllabus for Part-I examination and general instructions in respect of Part-II shall be determined and issued by the Director General-cum- Inspector General of Police from time to time. In exercise of those powers, syllabus has also been provided and admittedly, it has been stated by the petitioner himself in the writ petition that Appendix 'A' introduced vide order dated 10.09.1990 provides for written test of 100 marks; Parade and other outdoor tests of 100 marks followed by 75 marks allotted jointly for interview and examination of service record.
Further break up of 75 marks towards assessment of service record and performance in interview has been provided in Appendix 'B' introduced vide order dated 10.09.1990 under which 40 marks have been allotted for interview which includes eight criteria as below:
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(14 of 37) [CW-2364/1999] (i) Personality; (ii) Turn out; (iii) Address and behaviour; (iv) Tact; (v) Aptitude; (vi) Judgement; (vii) Leadership; (viii) General Awareness.
17. It is not necessary for us to go into the aspect with regard to correctness and validity of scheme of promotion on the touchstone of Article 14 of the Constitution of India except for the provision which relates to prescription of 40 marks for interview. According to the petitioner, provision for 40 marks for interview out of total 275 marks in the entire selection process for promotion is arbitrary being excessive and against settled judicial pronouncements.
18. The authoritative judicial pronouncements rendered by the Hon'ble Supreme Court on the aforesaid aspect not only deal with the cases of direct recruitment, but also those cases where provision for promotion was limited competitive examination of in- service candidates as provided under the scheme of the relevant rules. Following consideration and analysis by the Hon'ble Supreme Court in its decisions would reveal the distinction carved out between the necessity of providing marks for interview at the stage of direct recruitment as compared to the scheme of promotion by way of limited competitive examination for in- service candidates for assessment of suitability of the candidates.
19. In the case of Lila Dhar Vs. State of Rajasthan & Others, (1981) 4 SCC 159, the question which arose for consideration by (Downloaded on 02/05/2024 at 08:41:24 PM) (15 of 37) [CW-2364/1999] the Hon'ble Supreme Court was as to what is the ideal mode of selection to a public service, by written examination, by oral test (viva voce), or by a combination of both. It also fell for consideration as to what is the proper relative weight that should be attached to the written examination and the oral test and whether the oral test so pernicious in practice, should be abandoned without regrets or the weight to be attached to it be made minimal.
That was a case where the Hon'ble Supreme Court was dealing with a case of competitive examination for recruitment of Munsifs under the Rajasthan Judicial Service Rules. The principal plank of challenge to the selection process was based on the ground that allocation of 25% of the total marks allotted for viva voce examination was arbitrary and unreasonable and, therefore, violative of Articles 14 and 16 of the Constitution of India. Laying down the fundamental principles behind a comprehensive test mechanism comprising of written examination as well as interview, it was pertinently observed by the Hon'ble Supreme Court as below:
"5. ............. It is now well recognised that while a written examination assesses a candidate's knowledge and intellectual ability, an interview-test is valuable to assess a candidate's overall intellectual and personal qualities. While a written examination has certain distinct advantage over the interview-test there are yet no written tests which can evaluate a candidate's initiative, alertness, resourcefulness, dependableness, cooperativeness, capacity for clear and logical presentation, effectiveness, in discussion, effectiveness in meeting and dealing with others, adaptability, judgment, ability to make decision, ability to lead, intellectual and moral integrity."(Downloaded on 02/05/2024 at 08:41:24 PM)
(16 of 37) [CW-2364/1999] However, a line of distinction was noted insofar as case of services to which recruitment has necessarily to be made from persons of mature personality, in which case, interview test may be the only way, subject to basic and essential academic and professional requirements being satisfied. It was observed by the Hon'ble Supreme Court as 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, (1971) 1 SCC 38; Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 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 (Downloaded on 02/05/2024 at 08:41:24 PM) (17 of 37) [CW-2364/1999] 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 of Public Service Commission."
Proceeding further with justifying the criteria for the interview test and it being a part of selection process, essentially delineating the scope of judicial review, it was held by the Hon'ble Supreme as below:
"8. The second ground of attack must fail for the same reason as the first ground of attack. The rules themselves do not provide for the allocation of marks under different heads at the interview-test. The criteria for the interview-test has been laid down by the rules. lt is for the interviewing body to take general decision whether to allocate marks under different heads or to award marks in a single lot. The award of marks under different heads may lead to a distorted picture of the candidate on occasions. On the other hand the totality of the impression created by the candidate on the interviewing body may give a more accurate picture of the candidate's personality. It is for the interviewing body to choose the appropriate method of marking at the selection to each service. There cannot be any magic formulae in these matters and courts cannot sit in judgment over the methods of marking employed by interviewing bodies unless, as we said, it is proven or obvious that the method of marking was chosen with oblique motive."
In the aforesaid case, the Hon'ble Supreme Court, noting the jurisprudential developments in that regard, in view of its decisions in the cases of Minor A. Peeriakaruppan Sobha Joseph Vs. State of Tamil Nadu & Others, (1971) 1 SCC 38 and Ajay Hasia & Others Vs. Khalid Mujib Sehravardi & Others (1981) 1 SCC 722 dealing with cases of admission to colleges, also underlined those developments as below:
"9. Both the cases cited before us Periakaruppan's case and Ajay Hasia's case were cases of admission to colleges. We have already pointed out that the provision for marks for interview-test need not and cannot be the (Downloaded on 02/05/2024 at 08:41:24 PM) (18 of 37) [CW-2364/1999] same for admission to colleges and entry into public service. In fact in Periakaruppan's case, even in the case of college admissions the Court observed: (SCC p. 44, para 15) While we do feel that the marks allotted for interview are on the high side and it may be appropriate for the Government to re-examine the question, we are unable to uphold the contention that it was not within the power of the Government to provide such high marks for interview or that there was any arbitrary exercise of power.
It is true that in Periakaruppan's case, the Court held that the non allocation of marks under various heads in the interview-test was illegal but that was because the instructions to the Selection Committee provided that marks were to be awarded at the interview on the basis of five distinct tests. It was thought that the failure to allocate marks under each head or distinct test was an illegality. But, in the case before us, the rule merely and generally indicates the criteria to be considered in the interview-test without dividing the interview-test into distinct, if we may so call them, sub-tests. We do not think that Periakaruppan's case, which, as we said, deals with admission to a college, affords any true guidance to us. Ajay Hasia's case was also a case of admission to a college. The Court while upholding the interview test as not irrational or irrelevant though unsatisfactory and capable of abuse, made the following observation: (SCC p.744, para 18) We would, however, like to point out that in the matter of admission of colleges 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, moreover, 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 Court then proceeded to consider the next question raised before them, whether the allocation of 33-1/3 percent of the total marks for the interview test vitiated the selection procedure as arbitrary and unreasonable. It was held that it did and reference was made to the fact that even for selection of candidates for the Indian Administrative Service the marks allocated for the interview-test were only 12.2 percent of the total. It was then observed: (SCC p. 746, para 19) Under the existing circumstances, allocation of more than 15% of the total marks for the oral interview would be arbitrary and unreasonable and (Downloaded on 02/05/2024 at 08:41:24 PM) (19 of 37) [CW-2364/1999] would be liable to be struck down as constitutionally invalid."
The observations made in the case of Minor A. Peeriakaruppan Sobha Joseph(supra) and Ajay Hasia & Others (supra) were explained by the Hon'ble Supreme Court so as to limit the same in connection with the problems of admission to the colleges and actually not dealing with the principles applicable in the matter of approach to Indian Administrative Service Examination. Following pertinent observations were made by the Hon'ble Supreme Court:
"9. ............. The observations of the Court were made, primarily in connection with the problem of admission to colleges, where naturally, academic performance must be given prime importance. The words "or even in the matter of public employment" occurring in the first extracted passage and the reference to the marks allocated for the interview test in the Indian Administrative Service examination 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 to public services. The observation relating to public employment was per incuriam since the matter did not fall for the consideration of the Court in that case. Nor do we think that the Court intended any wide construction of their observation."
The scope of judicial review was also delineated by the Hon'ble Supreme as below:
"............ 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 (Downloaded on 02/05/2024 at 08:41:24 PM) (20 of 37) [CW-2364/1999] obvious oblique motive. There is none in the present case."
20. In a subsequent decision, in the case of Mohinder Sain Garg & Others Vs. State of Punjab & Others (1991) 1 SCC 662, the Hon'ble Supreme Court dealt with legality and validity of a provision of allotment of 25% marks to interview in the matter of direct recruitment to the posts of Excise and Taxation Inspector in the State of Punjab. Having considered the decision in the case of Minor A. Peeriakaruppan Sobha Joseph(supra), the Hon'ble Supreme Court further proceeded to consider the legal position as stated in its earlier decisions in the cases of Miss Nishi Maghu & Others Vs. State of J & K & Others, (1980) 4 SCC 95, Ajay Hasia & Others (supra), Lila Dhar (supra), Koshal Kumar Gupta & Others Vs. State of J & K & Others, (1984) 2 SCC 652 and Ashok Kumar Yadav & Others etc. etc. (supra). Noting the distinction pointed out in the case of Lila Dhar (supra) and the peculiar facts of the case of Ashok Kumar Yadav & Others etc. etc. (supra), it was pertinently observed by the Hon'ble Supreme Court as under:
"22. In Ashok Kumar Yadav v. State of Haryana a Bench of four Judges again considered the question of percentage of marks kept for viva voce examination. In this case Rule 9 clause (1) of the Punjab Civil Service (Executive Branch) Rules, 1930 prescribed a competitive examination for recruitment to posts in Haryana Civil Service (Executives) and other allied services. Regulation 1 in Appendix 1 lays down that the competitive examination shall include compulsory and optional subjects and that every candidate shall take all the compulsory subjects and not more than three of the optional subjects, provided that ex-servicemen shall not be required to appear in the optional subjects. As per Regulation 5, the compulsory subjects carried in the aggregate 400 marks and there was also viva voce examination which was compulsory and which carried (Downloaded on 02/05/2024 at 08:41:24 PM) (21 of 37) [CW-2364/1999] 200 marks and each optional subject carried 100 marks. The result was that the written examination carried an aggregate of 700 marks for candidates in general and for ex-servicemen it carried an aggregate of 400 marks while in case of both, the viva voce examination carried 200 marks. Regulation 3 provided that no candidate shall be eligible to appear in the viva voce test unless he obtained 45% marks in the aggregate of all subjects including at least 33% marks in each of the language papers in Hindi and Hindi essay."
The legal position was also examined as below:
"23. .............
"While a written examination assesses the candidate's knowledge and intellectual ability, a viva voce test seeks to assess a candidate's overall intellectual and personal qualities. While a written examination has certain distinct advantages over the viva voce test, there are yet no written tests which can evaluate a candidate's initiative, alertness, resourcefulness, dependableness, cooperativeness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others, adaptability, judgment, ability to make decision, ability to lead, intellectual and moral integrity. Some of these qualities can be evaluated, perhaps with some degree of error, by a viva voce test, much depending on the constitution of the interview board. There can therefore be no doubt that the viva voce test performs a very useful function in assessing personnel characteristics and traits and in fact, tests the man himself and is therefore regarded as an important tool along with the written examination."
"There cannot be any hard and fast rule regarding the precise weight to be given to the viva voce test as against the written examination. It must vary from service to service according to the requirement of the service, the minimum qualification prescribed, the age group from which the selection is to be made, the body to which the task of holding the viva voce test is proposed to be entrusted and a host of other factors. It is essentially a matter of determination by experts. The court does not possess the necessary equipment and it would not be right for the court to pronounce upon it, unless to use the words of Chinnappa Reddy, J. in Lila Dhar case 'exaggerated weight has been given with proven or obvious oblique motives'."
"So far as candidates in general category are concerned, it would be prudent and safe to follow the percentage adopted by the Union Public Service Commission in case of selection to the Indian Administrative Service and (Downloaded on 02/05/2024 at 08:41:24 PM) (22 of 37) [CW-2364/1999] other allied services. The percentage of marks allocated for the viva voce test by the Union Public Service Commission in case of selections to the Indian Administrative Services and other allied service is 12.2, and that has been found to be fair and just, as striking a proper balance between the written examination and the viva voce test. This Court would therefore direct that hereafter in case of selections to be made to the Haryana Civil Service (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. The Court would suggest that this percentage should also be adopted by the Public Service Commissions in other States, because it is desirable that there should be uniformity in the selection process through out the country and the practice followed by the Union Public Service Commission should be taken as a guide for the State Public Service Commissions to adopt and follow. In case of ex-service officers, having regard to the fact that they would ordinarily be middle aged persons with personalities fully developed, the percentage of marks allocated for the viva voce test may be 25. Whatever selections are made by the Haryana Public Service Commission in the future shall be on the basis that the marks allocated for the viva voce test shall not exceed 12.2% in case of candidates belonging to the general category and 25% of ex-service officers."
Having considered various judicial pronouncements, including the decision in the case of Ashok Kumar Yadav & Others etc. etc. (supra), the legal position which emerged was stated by the Hon'ble Supreme Court as below:
"29. The position which emerges from the consideration of the above cases is that A. Peeriakaruppan v. State of T. N., Nishi Maghu v. State of J & K and Ajay Hasia v. Khalid Mujib Sehravardi were cases for admissions to colleges. In Lila Dhar v. State of Rajasthan a bench of three Judges then considered the question of selection to Rajasthan Judicial Service by written examination as well as oral viva voce test. In that case 25 per cent marks were kept for the viva voce examination. One of the unsuccessful candidates filed a petition under Article 32 before this Court. One of the grounds taken was that the high percentage of viva voce marks were clearly in violation of the dictum laid down by the Constitution Bench in Ajay Hasia case. This Court in Lila Dhar case distinguished the cases of A. Peeriakaruppan and Ajay (Downloaded on 02/05/2024 at 08:41:24 PM) (23 of 37) [CW-2364/1999] Hasia on the ground that they were cases for admissions to colleges. It was pointed out that the provision for marks for interview test need not and cannot be the same for admission to colleges and entry into public services. As regards the words "Or even in the matter of public employment" used in Ajay Hasia case it was observed in Lila Dhar case that the observations of the court were made, primarily, in connection with the problem of admission to colleges where, naturally, academic performance must be given prime importance. It was further held that the observations relating to public employment was per incuriam since the matter did not fall for the consideration of the court in that case. It was further held that the interview test in Lila Dhar case was conducted by a body consisting of a Judge of the High Court, the Chairman and a Member of the Punjab Service Commission and a special invitee expert. Thus there could be no legitimate grievance or hint of arbitrariness against such body. Another factor worthy of consideration in that case was that the candidates expected to offer themselves for selection were not raw graduates fresh out of college but were persons who had already received a certain amount of professional training. The source material was such that some weightage was to be given to the interview test and in their Lordship's view 25 per cent of the total marks was not an exaggerated weightage. The court thus dismissed the petition in Lila Dhar case."
From the aforesaid, it is clear that while much insistence on high interview marks may not be proper and the same may turn to be an arbitrary allocation of marks at the initial state of recruitment, but where there are persons who have received certain amount of professional training, who are in-service candidates and have acquired expertise by way of experience, some more weightage may be given to the interview test and the same cannot be said to be exaggerated weightage. Having taken into consideration the verdict in the case of Ashok Kumar Yadav & Others etc. etc. (supra), the Hon'ble Supreme Court in the aforesaid case laid down as below:
"33. In our view Ashok Kumar Yadav case clinches the issues raised before us and being a decision given by four (Downloaded on 02/05/2024 at 08:41:24 PM) (24 of 37) [CW-2364/1999] Judges is also binding on us. That was a case relating to public employment and a direction was given to all the Public Service Commissions to follow the marks allocated for viva voce test as done by the UPSC which was 12.2% of the total marks. Ashok Kumar Yadav case was decided in 1985 and 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. It is no doubt correct that the selection of Taxation and Excise Inspectors is done by a subordinate selection body and not by Public Service Commission yet no valid reason has been given before us by learned counsel for the respondents as to why the principle enunciated in Ashok Kumar Yadav case should not be applied in these cases as well. Even if Ashok Kumar Yadav case may not in terms apply in the cases before us to the extent of laying down 12.2% of the total marks for viva voce test which was made applicable for selections to be made by UPSC, we deem it proper to lay down after taking in view the dictum of all the authorities decided so far that the percentage of viva voce test in the present cases at 25% of the total marks is arbitrary and excessive. There could be no gainsaying that viva voce test cannot be totally dispensed with, but taking note of the situation and conditions prevailing in our country, it would not be reasonable to have the percentage of viva voce marks more than 15 per cent of the total marks in the selection of candidates fresh from college/school for public employment by direct recruitment where the rules provided for a composite process of selection namely written examination and interview."
21. In another subsequent decision in the case of Union of India & Another Vs. N. Chandrasekharan & Others (1998) 3 SCC 694, the issue which arose for consideration was with regard to high marks allotted for interview. On facts, that was a case where the selection scheme for promotion comprised of written test followed by interview as also marks for confidential reports. The marks prescribed for written test, interview and confidential report were 50, 30 and 20 respectively. The rule, however, prescribed that to qualify for promotion, one should get minimum 50% prescribed for each head and also 60% in the aggregate. (Downloaded on 02/05/2024 at 08:41:24 PM)
(25 of 37) [CW-2364/1999] Having noted the law laid down in the case of Ashok Kumar Yadav & Others etc. etc. (supra) and the distinction pointed out in the matter of scheme of allotment of marks for interview in direct recruitment and in the matter of promotion, following submissions were made before the Hon'ble Supreme Court:
"9. Mr. Mahajan, learned Senior Counsel for the appellants, submitted that the Tribunal has wrongly applied to law laid down in Ashok Kumar Yadav case which related to interview held for competitive examination for recruitment to posts in the Haryana Civil Service and was not a case of selection for higher posts. Therefore, the Tribunal was not right in applying the ratio laid down in Ashok Kumar Yadav case. He also submitted that this Court had made clear distinction between interview held for competitive examination or admission in educational institutions and selection for higher posts. In this connection, he relied on two judgments of this court in Mehmood Alam Tariq Vs. State of Rajasthan (1988) 3 SCC 241 and C.P. Kalra Vs. Air India 1994 Supp. (1) SCC 454. He also emphasized the need for giving importance to interview marks in this case by bringing to our notice the averments in the reply statement which reads as follows:-
"Usually, a written test may aim at ascertaining the theoretical knowledge. There is no scope in a written test to raise further questions on answers written down nor to ascertain additional information as to how one would react in different practical situations such as the vendor rating scenario, space qualification requirement of components, sub- systems to be procured; skill required or the strategies to be adopted during contract negotiations and during different tendering stages; up-to-date knowledge on the national and international market situations which are much relevant to Indian Space Research Organisation/DOS; capability for personal presentation of the cases to the satisfaction of the Customs authorities to obtain waiver for physical examination of cases; intricacies relating to the laws such as Insurance Act etc. and above all the understanding of the requirements of the space programmes which involve, technological uncertainties, repetitive ground testing of systems, sub-systems, failure analysis procedures and reworking on components/sub-systems/ systems which have already been procured or fabricated.(Downloaded on 02/05/2024 at 08:41:24 PM)
(26 of 37) [CW-2364/1999] The capability to handle these and many similar practical aspects required to effectively discharge the duties and responsibilities of an Assistant Purchase Officer in Indian Space Research Organisation / DOS can normally be assessed only through a personal interview."
Having examined the legal position in various dicta including the cases of Ashok Kumar Yadav & Others etc. etc. (supra); Mehmood Alam Tariq & Others Vs. State of Rajasthan & Others (1988) 3 SCC 241; Lila Dhar (supra); State of U.P. Vs. Rafiquddin & Others 1987 (Supp) SCC 401, following pertinent observations were made by the Hon'ble Supreme Court:
"13. We have considered the rival submissions in the light of the facts presented before us. It is not in dispute that all the candidates were made aware of the procedure for promotion before they sat for the written test and before they appeared before the Departmental Promotion Committee. Therefore, they cannot turn around and contend later when they found they were not selected by challenging that procedure and contending that the marks prescribed for interview and confidential reports are disproportionately high and the authorities cannot fix a minimum to be secured either at interview or in the assessment on confidential report. Even on merits, we agree with the learned Senior Counsel for the appellants that due regard must be had to the posts to which the candidates are to be promoted as well as to the nature of duties they have to discharge/perform and so viewing the marks given to the interview cannot be considered as disproportionately high or the spread of marks was done arbitrarily. The Departmental Promotion Committee consisted of the following Personalities:
Designation Location
1. Jt. Secretary to GOI Chairman DOS Bangalore
2. Scientific Secretary, ISRO Alt. Chairman/Member ISRO HQ.
Bangalore
3. Head, Programme Planning Member ISAC,
Bangalore and Evaluation Division
4. Addl. Chief Engineer Member CED,
Bangalore
5. Head Purchase & Stores Member VSSC,
Trivandrum
6. Head Purchase & Stores Member SHAR,
Sriharikota
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7. Head Purchase & Stores Member ISAC,
Bangalore
8. Head Purchase & Stores Member SAC,
Ahmedabad.
14. A look at the above composition will place beyond any reasonable doubt that there was no scope for arbitrary exercise of selection or favouritism. It is also relevant to point out that though in the pleadings mala fides was raised vaguely, nothing was established nor the Tribunal discussed about it. In the absence of any mala fides pleaded and established and in the facts and circumstances of this case, the importance given to the interview cannot by any means be termed as arbitrary or violative of Article 14 or 16 of the Constitution.
15. The reliance placed by the Tribunal on the Ratio laid down by this Court in Ashok Kumar Yadav case is totally misconceived as that was not a case of promotion to a higher post. This Court in Kalra case had occasion to consider similar situation and observed as follows: (SCC pp. 458-59, para 7) "7. It was next submitted that the promotion policy was unconstitutional as the marks assigned for the interview test were far in excess of the permissible norm or limit. The 40% prescription for interview is based on Rule 2.6 of the promotion policy. This 40 per cent is divided under different heads or factors as stated hereinabove. The submission of the learned counsel for the petitioner was based on the observations of this Court in Ashok Kumar Yadav wherein this Court observed that 33.3 per cent marks reserved for oral test were excessive and would suffer from the vice of arbitrariness. The High Court has dealt with this submission and has pointed out that no hard and fast rule can be evolved in this behalf because much would depend on the job requirement for each post and the level of the post. A whole line of decisions were brought to our notice beginning from Ajay Hasia case but it would be sufficient for us to refer to the latest decision in the case Indian Airlines Corpn. vs. Capt. K.C. Shukla (1993) 1 SCC 17. In that case this Court after referring to the decisions in Ajay Hasia, Lila Dhar, Ashok Kumar Yadav and Rafiquddin observed that a distinction appears to have been drawn in interviews held for competitive examinations or admission in educational institutions and selection for higher posts. Efforts have been made to limit the scope of arbitrariness in the former by narrowing down the proportion as various factors are likely to creep in, but the same (Downloaded on 02/05/2024 at 08:41:24 PM) (28 of 37) [CW-2364/1999] standard cannot be applied for higher selections and this is clearly brought out in Lila Dhar Case. It is, therefore, clear that this court was also of the view that no hard and fast rule can be laid down in these matters because much would depend on the level of the post and the mature of the performance expected from the incumbent. In that case, the method of evaluation was based 50 per cent on ACRs and 50 per cent on interviews and this Court upheld the said method notwithstanding the fact that the weightage for interview performance was as high as 50 per cent. We are, therefore, of the view that the contention that because in the instant case the weightage for the viva voce test is 40 percent, it is per se excessive and hence arbitrary, cannot be accepted."
(emphasis supplied)
16. In Mehmood Alam case this Court had occasion to deal with more or less an identical situation, held as follows: (SCC pp. 251-54, paras 20-22) "20. On a careful consideration of the matter, we are persuaded to the view that the prescription of minimum qualifying marks of 60 (33 per cent) out of the maximum marks of 180 set apart for the viva voce examination does not, by itself, incur any constitutional infirmity. The principles laid down in the cases of Ajay Hasia, Lila Dhar, Ashok Kumar Yadav, do not militate against or render impermissible such a prescription. There is nothing unreasonable or arbitrary in the stipulation that officers to be selected for higher services and who are, with the passage of time, expected to man increasingly responsible positions in the core services such as the Administrative Services and the Police Services should be men endowed with personality traits conducive to the levels of performance expected in such services. There are features that distinguish, for instance, Accounts Service from the Police Service - a distinction that draws upon and is accentuated by the personal qualities of the officer. Academic excellence is one thing. Ability to deal with the public with tact and imagination is another. Both are necessary for an officer. The dose that is demanded may vary according to the nature of the service.
Administrative and police services constitute the cutting edge of the administrative machinery and the requirement of higher traits of personality is not an unreasonable expectation.
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21. Indeed in Lila Dhar vs. State of Rajasthan, this Court observed: (SCC pp. 164-65: SCC (L&S) pp. 592-93, para
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 personalty 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 perforce 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 Minor A. Peeriakaruppan vs. State of T.N., Ajay Hasia vs. 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 profession requirements being satisfied.... 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, thought 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 qualification 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.' (emphasis supplied) (Downloaded on 02/05/2024 at 08:41:24 PM) (30 of 37) [CW-2364/1999] This Court indicated that in matters such as these, which reflect matters of policy, judicial wisdom is judicial restraint. Generally matters of policy have little adjudicative disposition.
22. Indeed, the point raised in the appeals admits of the answer found in the pronouncement of this Court in State of U.P. vs. Rafiquddin where this Court considered the permissibility of the prescription of minimum qualifying or cut-off marks in viva voce examination, while dealing with clause (ii) of the proviso to Rule 19 (as it stood prior to the 1972 amendment) of the U.P. Civil Service (Judicial Branch) Rules, 1951. The provision required the selection committee, inter alia, to ensure that persons who did not secure sufficiently high marks in that interview were not recommended for the posts. Pursuant to the power thus reserved to it, the selection committee, prescribed certain minimum cut-off marks for the interview. This Court upholding the validity of the prescription observed at pp. 413, 415:
'... Aggregate marks obtained by a candidate determined his position in the list, but the proviso of the rule required the Commission to satisfy itself that the candidate had obtained such aggregate marks in the written test as to qualify him for appointment to service and further he had obtained such sufficiently high marks in viva voce which would show his suitability for the service. The scheme underlying Rule 19 and the proviso made it apparent that obtaining of the minimum aggregate marks in the written test and also the minimum in the viva voce was the sine qua non before the Commission could proceed to make its recommendation in favour of a candidate for appointment to the service. The Commission in view of clause (ii) of the proviso had power to fix the minimum marks for viva voce for judging the suitability of a candidate for service. Thus a candidate who had merely secured the minimum of the aggregate marks or above was not entitled to be included tin the list of successful candidates unless he had also secured the minimum marks which had been prescribed for the viva voce test....
...The Commission had, therefore, power to fix the norm and in he instance case it had fixed 35 per cent minimum marks for viva voce test. The viva voce test is a well recognised method of judging the suitability of a candidate for appointment to public services and this method had almost universally been followed in making selection for appointment to public services. Where selection is made on the (Downloaded on 02/05/2024 at 08:41:24 PM) (31 of 37) [CW-2364/1999] 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. Clause (ii) of the proviso to rule 19 clearly confers power on the Commission to fix minimum marks for viva voce test for judging the suitability of candidate for the service. We do not find any constitutional legal infirmity in the provision.' (emphasis supplied) This should, in our opinion, conclude the present controversy in favour of the appellants."
(emphasis in original)"
Having drawn a clear line of distinction between the principles applicable in the matter of rationality behind prescription of interview marks in direct recruitment and that in the matter of promotion, the Hon'ble Supreme Court held that the approach of the Tribunal therein in holding that the prescription of high interview marks in the scheme of promotion was bad, applying the ratio in the case of Ashok Kumar Yadav & Others etc. etc. (supra). It was held thus:
"17. In the light of the well-settled position, as discussed have, we have no hesitation to hold that the Tribunal went wrong in applying the ratio laid down by Court in Ashok Kumar Yadav case, while upsetting the 1990 selection list and giving directions to prepare a new selection list in accordance with that direction."
22. In the case of Jasvinder Singh & Others Vs. State of J&K & Others, (2003) 2 SCC 132, which was a case of direct recruitment to the posts of Sub Inspector of Police, prescription of 20% marks for viva voce as against 80% marks for written test was upheld. The Hon'ble Supreme Court having noted its earlier decision in the case of Ashok Kumar Yadav & Others etc. etc. (supra), held as below:
(Downloaded on 02/05/2024 at 08:41:24 PM)
(32 of 37) [CW-2364/1999] "6. This Court in Ashok Kumar Yadav case observed that both written examination and viva voce test are accepted as essential features of proper selection and that there cannot be any hard-and-fast rule regarding the precise weight to be given to the viva-voce test as against written examination, which may vary from service to service according to the requirement of that particular service, the minimum qualifications prescribed, the age group from which selection is to be made, the body to which the task of holding the viva- voce is entrusted and a host of other factors. It was also observed that all such are essentially matters for determination by experts and it would not be right for the Court to pronounce upon it unless "exaggerated weight has been given with proven or obvious oblique motives". Thereupon while adjudging the issue as to whether the allocation of as high a percentage of marks as 33.3% in case of ex-service officers and 22.2% in case of other candidates, this Court adverted to the pattern of marks and found that the highest marks obtained in the written examination by ex- officers worked out only to a ratio of 22.2% as against the marks obtained in the viva-voce worked out to an inordinately high percentage of 76. What was considered to be the vitiating factor was the spread of marks in the viva voce test being enormously large compared to the spread of marks in the written examination leaving room for greater laxity at their command and for arbitrary exercise of the same with so high percentage of 33.3% for viva voce. So far as candidates other than ex-service members viz., the general category are concerned, the percentage of 22.2% was considered to be very high tested by the same standards. Proceeding further as to the question what should be the proper percentage of marks to be allocated for the viva voce test in such cases, it was observed that marks allocated for the viva voce test shall not exceed 12.2% of the total marks taken into account for the purpose of selection. This Court finally observed there in as follows: (SCC pp. 455- 56, para 29) "We would therefore direct that in case ex-service officers, having regard to the fact that they would ordinarily be middle-aged persons with personalities fully developed, the percentage of marks allocated for the viva voce test may be 25. Whatever selections are made by the Haryana Public Service Commission in the future shall be on the basis that the marks allocated for the viva voce test shall not exceed 12.2% in case of candidates belonging to the general category and 25% in case of ex-service officers."
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(33 of 37) [CW-2364/1999]
7. In Mehmood Alam Tariq Vs. State of Rajasthan (1988) 3 SCC 241 prescription of 33% as minimum qualifying marks of 60 out of total 180 marks set apart for viva voce examination does not by itself incur any constitutional infirmity. In Manjeet Singh Vs. ESI Corpn. (1990) 2 SCC 367 this Court held that in the absence of any prescription of qualifying marks for the interview test the same 40% as applicable for written examination was reasonable. In Anzar Ahmad Vs. State of Bihar (1994) 1 SCC 150 this Court exhaustively reviewed the entire case-law on the subject including the one in Ashok Kumar Yadav and upheld a selection method which involved allocation of 50% marks for academic performance and 50 marks for the interview. The very observations in Ashok Kumar Yadav would go to show that there cannot be any hard-and-fast rule of universal application for allocating the marks for viva voce viz-a-viz the marks for written examination and consequently the percentage indicated therein alone cannot be the touchstone in all cases. What ultimately required to be ensured is as to whether the allocation, as such is with an oblique intention and whether it is so arbitrary as capable of being abused and misused in its exercise. Judged from the above the Division Bench could not be held to have committed any error in sustaining the allocation of 25 marks (20%) for viva voce as against 100 marks for written examination for selection of candidates in the present case. The learned Single Judge, in our view, has adopted a superficial exercise and proceeded on a misunderstanding of the real ratio of the decision in Ashok Kumar Yadav case. Further, the learned Single Judge appears to have applied the ultimate decision in the said case, to the case on hand drawing certain inferences on mere assumptions and surmises or some remote possibilities, without any proper or actual foundation or basis, therefor."
23. If we apply the aforesaid principles, which have been succinctly laid down by the Hon'ble Supreme Court in the matter of challenge to allocation of marks for interview on the ground of it being slightly higher as part of scheme of promotion for in- service candidates, so as to become determining factor as compared to desirability of having low interview marks in the matter of direct recruitment, we find that in the present case, maximum marks allotted for interview is 40 out of total 275 (Downloaded on 02/05/2024 at 08:41:24 PM) (34 of 37) [CW-2364/1999] marks. That means, for interview 14.54% marks have been allocated and, therefore, challenge to the relevant rules providing for 40 marks for interview as against total 275 marks cannot be held to be arbitrary and excessive or determining factor so as to declare the relevant rules as arbitrary, irrational and violative of Articles 14 and 16 of the Constitution of India. The challenge in this regard, therefore, must fail.
24. Learned counsel for the petitioner made submission that scheme of examination providing for various stages including interview is in conflict with the settled principles in the matter of assessment of suitability for promotion based on seniority-cum- merit. The said contention is liable to be rejected because Part-V of the Rules of 1989 deals with procedure for appointment by promotion and it does not prescribe that promotion from the post of Constable to the post of Head Constable shall be based only on seniority-cum-merit. In other words, argument that the procedure for selection for promotion as prescribed under Rule 26 to Rule 33 of the Rules of 1989 will have no application, is against the prescription of law and the said argument is, therefore, liable to be rejected and the same is, accordingly, rejected.
25. The other submission made on behalf of the petitioner is with regard to prescription of minimum qualifying marks in Part-I and Part-II of the qualifying examinations. This hardly could be a ground for challenge. Minimum qualifying marks on different stages of selection have been consistently upheld by the Hon'ble Supreme Court in various decisions, particularly those relating to selection to the post borne in the judicial services in various (Downloaded on 02/05/2024 at 08:41:24 PM) (35 of 37) [CW-2364/1999] States. In this regard, decisions of the Hon'ble Supreme Court in the cases of Taniya Malik Vs. The Registrar General of the High Court of Delhi (Writ Petition (Civil) No. 764/2017 and other connected petitions decided on 16.02.2018); High Court of Hyderabad for the State of Telangana and State of Andhra Pradesh, through Its Registrar General Etc. Vs. P. Murali Mohana Reddy & Others Etc. (Civil Appeal Nos. 73- 74 of 2019 decided on 25.01.2019); Sushil Kumar Pandey & Others Vs. The High Court of Jharkhand & Another (Writ Petition (Civil) No. 753/2023 and another connected writ petition decided on 01.02.2024) and Dr. Kavita Kamboj Vs. High Court of Punjab & Haryana & Others (Civil Appeal Nos. 2179-2180/2024 and other connected appeals decided on 13.02.2024), clearly laid down that prescribing minimum qualifying marks for interview or prescribing minimum aggregate marks does not per se suffer from any arbitrariness unless the same is violative of Articles 14 and 16 of the Constitution of India. The respondents have also relied upon the decision of Division Bench of this Court at Principal Seat at Jodhpur in the case of Kalu Ram Vs. State of Rajasthan & Others (D.B. Civil Writ Petition No. 4264/2010 decided on 11.10.2011), wherein constitutional validity of Rule 23 of the Rules of 1989 inasmuch as it provides for securing 36% minimum marks in interview was challenged. That was a case relating to direct recruitment. Having examined the scheme of the rules and surveyed decisions of the Hon'ble Supreme Court in the cases of Mehmood Alam Tariq & Others (supra); Ajay Hasia & Others (supra); Lila Dhar (Downloaded on 02/05/2024 at 08:41:24 PM) (36 of 37) [CW-2364/1999] (supra) and Ashok Kumar Yadav & Others etc. etc. (supra), challenge to the prescription of minimum marks in interview was repelled. Learned counsel for the respondents further relied upon the decision of Division Bench of this Court in the case of Rajbala Choudhary (supra), wherein relying upon the decision in the case of Kalu Ram (supra), challenge to the validity of Rule 23 of the Rules of 1989 was again repelled.
26. The other contention advanced in this petition that the respondents have not clearly stated as to how much marks were awarded for various attributes of merit while assessing suitability of the candidates during viva voce is liable to be rejected. It appears that there is no allegation of mala fides leveled against the selection body individually or collectively. Moreover, at this stage, it is not possible for this Court to go into this aspect because even the records have been destroyed as the matter pertains to selection process of 1990-91 which is clear from the record of the writ petition. In such a situation, on account of non- availability of the records, adverse inference can also not be drawn.
27. So far as all other submissions pertaining to the aspect of suitability of the petitioner insofar as merits of selection, actual assessment of the petitioner's suitability with reference to his service records, performance in written examination, parade and interview are concerned, this Court in the absence of any cogent material on record does not find any ground to interfere with the decision of the respondents to reject petitioner's case for (Downloaded on 02/05/2024 at 08:41:24 PM) (37 of 37) [CW-2364/1999] promotion on the premise that he failed to secure minimum qualifying marks.
28. Last but not the least, we have noticed that the petitioner participated in the process of selection which is governed by a set of rules consisting of scheme of examination, allocation of marks for written test, practical, parade, other outdoor tests, interview, examination of service record etc. The petitioner did not raise any grievance in the beginning of process of selection and it is only when he failed, he decided to challenge the validity of the Rules of 1989. Therefore, on this count also, writ petition is liable to be dismissed.
29. In the result, writ petition fails and the same is hereby dismissed.
(SHUBHA MEHTA),J (MANINDRA MOHAN SHRIVASTAVA),CJ MANOJ NARWANI (Downloaded on 02/05/2024 at 08:41:24 PM) Powered by TCPDF (www.tcpdf.org)