Rajasthan High Court - Jaipur
Ramesh Chand Paliwal vs The State Of Rajasthan And Anr. on 25 October, 1990
Equivalent citations: 1990WLN(UC)496
JUDGMENT Navin Chandra Sharma, J.
1. The petitioner passed his degree in Bachelor of Laws in the year 1979, while continuing in service as Private Secretary-cum-Judgment Writer in the Rajasthan High Court. An advertisement dated July 6, 1989 was published by the Rajasthan Public Service Commission, Ajmer (respondent No. 2) for recruitment to 21 posts of Munsif-cum-Judicial Magistrate, First Class in Rajasthan Judicial Service, in "Rajasthan Patrika" dated July 12, 1989. Out of these 21 posts, 11 posts were meant for general category candidates and 10 posts were reserved for candidates belonging to Scheduled Castes and Scheduled Tribes. It was further mentioned that in the event of non availability of suitable candidates belonging to Scheduled Castes and Scheduled Tribes, the reserved posts will be filled in form amongst the candidates belonging to general category. Recruitment to the Rajasthan Judicial Service is governed by the Rajasthan Judicial Service Rules, 1955 (for short, hereinafter, 'the Rule'). These rules provide that a written test should be taken of all the candidates who are found eligible. In the written test, four papers are prescribed, namely-Law Paper-I and Law Paper-II, each carrying 100 marks, and Language (i) and Language-(ii), each carrying 50 marks, making the total as 300 marks in all. The Rules further provide that the Rajasthan Public Service Commission (for short, hereinafter, "the Commission") shall call for interview such of the candidates as have obtained a minimum of 35% marks in each of the Law Paper and 40% marks in the aggregate. The marks for interview were fixed at 35 only. Persons who obtained 45% marks of the aggregate marks of both written as well as interview were to be eligible for being considered for selection to the post of Munsif-cum-Judicial Magistrate in the Rajasthan Judicial Service.
2. The petitioner appeared in the written examination and obtained 131 marks out of 300 marks which was more than 40%, the minimum percentage of marks prescribed for calling a candidate for interview, and therefore, the petitioner was called for interview along with 30 other candidates from general category and two candidates from Scheduled Caste category. In the interview, the petitioner obtained 18 marks out of 35 and thus his total marks came to 149 out of total marks of 335, but he was not selected and his name do not find place in the selected list. Only 10 candidates from general category were declared successful and result of one candidates from general category and one candidate of Schedule Caste was with-held as per orders of this Court in another writ petition. It is against his non-selection to Rajasthan Judicial Service that the present writ petition has been filed by the petitioner challenging the vires of proviso (1) to Rules 19 of the Rules which provides for obtaining 45% marks in aggregate of both written papers and interview marks and further for a direction to the respondents to fill up the remaining 21 posts from amongst the candidates called for interview in November, 1989 ignoring the aforesaid proviso (1) to Rule 19 of the Rules. Along with the writ petition, a stay petition was also filed but no relief was sought against the selectec candidates not their selections had been challenged in the writ petition. Notice were issued to the respondents. Reply has been filed on behalf of the Rajasthan Public Service Commission.
3. The petitioner has traced the history of amendments in Schedule-III of the Rules. Prior to August 4, 1962, there was a provision which provided 900 marks for written examination with the requirement to obtain 40% of the aggregate to qualify the written examination and for interview, 200 marks were prescribed. As per proviso (1) to Rule 19, the candidate was required to obtain 50% marks out of 1100 aggregate marks. By an amendment dated August 4, 1962, the Written examination was made to carry only 300 marks requiring 40% of the aggregate to be obtained for qualifying the written examination and the interview carried 100 marks with a further requirement that a candidate was required to obtain 45% of the aggregate of 400 marks. After the decision of their Lordships of the Supreme Court in Ashko Yadav's case, the State of Rajasthan amended the rules from February 22, 1986. After the amendment made on February 22, 1986, the written test carried 300 marks requiring candidate to obtain 40% marks of the aggregate besides obtaining 35% marks in each Law Paper. For interview, in place of 100 marks, only 35 marks were provided. But while doing so the State Government did not amend the proviso (1) to Rule 19 which required a candidate to obtain 45% marks of the aggregate marks of both the written examination and the interview. The resultant position is that now a candidate has to secure minimum marks of 45% of 335 marks (300 marks for written examination 35 marks for interview) which comes to 150 3/4 (sayd 151). If a candidate fulfils the requirements of obtaining 40% marks out of 300 marks allotted in written examination i.e. if he obtains 120 marks, then in order to be recommended for appointment to the post of Munsif-cum-Judicial Magistrate in the service he has to obtain at least 31 marks in the interview. The petitioner has given a comparative chart showing the role of interview under the rules from time to time. From 1955 to 1962, the role of interview was 97.5%. During 1962 to 1985, its role was 60% and from 1986 onwards, the role of interview is 89%.
4. The petitioner had obtained 131 marks in written examination as against the minimum requirement of 120 marks and he was awarded 18 marks in interview out 35 marks, making the total as 149 marks. But he was not selected because he did not obtain the required 45% marks of the aggregate of marks allotted for written examination and interview which come to 150 3/4 (say 151) marks.
5. The petitioner has alleged that groviso (1) to Rule 19 of the Rules requiring 45% marks of the aggregate marks of both written examination and interview has resulted in enhancing the role of interview to the extent of 89% which is too high and it wholly negatives the importance of objective assessment of the candidate by way of written test. The first proviso to Rule 19 of the Rules is, therefore, wholly arbitrary and unreasonable and violates the provisions of Articles 14 and 16 of the Constitution of India. The result of this proviso was that although the petitioner obtained more than 50% marks in interview, but they could not be selected. The petitioner has submitted that this effect nullified the very purpose and the object of providing that the oral interview should not exceed 12.2% marks of the written test. It is further said that the Commission has also acted arbitrarily by not sending the 50% additional names of the candidates though it was informed well in time to keep the 50% names reserved for the purpose of recommending to the Government.
6. The Rajasthan Public Service Commission in its reply has submitted that it advertised 21 vacancies for Rajasthan Judicial Service and had received 2320 applications, out of which 1131 candidates appeared in the written examination. Only 33 candidates qualified in the written test and out of marks 10 persons were selected in accordance with the Rules. The result of two candidates had been with-held as per orders of the High Court. It is said that the object of prescribing the percentage of marks to be obtained in interview and in the aggregate is to select meritorious candidates of the minimum standard which has been fixed looking to the condition and circumstances existing in Rajasthan. The Rajasthan Judicial Service Rules, 1955 are promulgated by the Governor with the recommendation of the High Court Under Articles 234 read with 309 of the Constitution. High court was the parent authority in the case but it has not been impleded as respondent and hence the writ petition was not maintainable. With regard to the reserved list, it is submitted that if against 21 vacancies originally advertised, 21 candidates did not qualify for selection, then the posts were to be re- advertised. In the present case, there was no occasion to prepare reserved list.
7. Reference may be made to the decision of their Lordships of the Supreme Court in Liladhar v. State of Rajasthan and Ors. . That case dealt with the percentage of marks provided for written examination and interview in Rajasthan Judicial Service Rules as they existed prior to 1986. At that time-the comptitive examination consisted of a written examination with two papers in Law carrying 100 marks each and two papers, one in Hindi and other in English, each carrying 50 marks and a viva-voce examination carried 100 marks. Two contentions were advanced before the Supreme Court. The first contention was that the entire selection was vitiated by allocation of 25% of the total marks for the viva-voce examination. It was submitted that the allocation of so high a percentage of marks for the inteview test introduced an irredeemable element of arbitrariness so as to offend Articles 14 and 16 of the Constitution. The second contention was that the marks were awarded in the interview test in a single lot instead of sub-dividing and awarding marks separately under various heads for the various matters tested in the interview. His Lordship O. Chinnappa Reddy, J., speaking for the court, said that the object or any process, of selection for 'entry into public service is to secure the best and the most suitable person for the job, avoiding patronage and favouritism. The written examination assesses the man's intellect and the interview test the man himself and 'the twin shall meet' for a proper selection. If both written examination and interview are to be essention 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 candidates 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 latter life, greater weight was perforece to be given to performance in the written examination. The importance to be attached to the interview test must be minimal. That was decided by the Supreme Court in Periakaruppan v. State of Tamil Nadu , Ajay Hasia v. Khalid Mujig Sehravardi and other cases. On the other hand, in case of services to which recruitment has necessarily to be made from persons of mature personality, interview 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. There are, of course, many services to which recruitment is made form younger candidate 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 weight to the interview test. There cannot be any rule of thumb regarding the precise weight to be given. It must vary form 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 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 selection was not struck down by the Supreme Court on the ground that more than due weightage was given to interview test. It was stated in this connection that if the Governor, in consultation with the High Court and the Public Service Commission of the State makes rules stipulating 75% of the marks for the written examination and 25% of the interview test, on what basis can a court say that 25% for the interview test is on the high side, and more so when the interview test is generally conducted by a body consisting of a Judge of the High Court, the Chairman and member of the Public Service Commission and a special invitee- expert. Thus is Liladhar's case (supra), what was 25% of the total aggregate marks. In the present case, the maximum marks for interview were reduced from 100 to 35.
8. The decisoon in Ashok Kumar Yadav v. State of Haryana dealt with recruitment to Haryana Civil Service (Executive) and other allied services. In that case, the rules provided that the compulsory subjects of written test were to carry the aggregate of 400 marks and there was also vivo- voce examination which were compulsory and which carried 200 marks. There were three optional subjects in written examination which carried 100 marks each. The result was that candidates in general and for ex-servicemen, it carried an aggregate of 400 marks. But in case of both, the viva-voce examination carried 200 marks. No candidate was eligible to appear in viva-voce test unless he obtained 45% marks in the aggregate of all subjects including at least 33% marks in Language papers and Hindi Essay. His Lordship Bhagwati, J. referred to the decision in Liladhar's case (supra) and held that so far as ex-service officers were concerned, there could be no doubt that the percentage of marks i.e. 33.3% to be allocated for the vivavoce test in their case was Unduly high and which did suffer from the vice of arbitrariness. His Lordship examined the effect of alocating 33.3% marks for interview. It was stated that the minimum marks required to be obtained in the written examination for eligiblity for viva-voce test was 180 i.e. 45% of 400 marks and as against these minimum 180 marks, the highest marks obtained in the written examination in the category of ex-service officers were 270, the spread of marks in the written examination was thus only 90 marks which worked out a ratio of 22.2%. But while considering the marks obtained in viva voce test, the lowest marks obtained were 20 while the highest marks secured were 171 and the spread of marks in viva-voce test was thus has wide as 151 in a total of 200 marks which were no doubt inordinately high percentage of 76. With regard to the marks prescribed in relation to persons belonging to general category, it was held that the viva voce test in that category also became a depending, factor in the process of selection, tilting the scales in favour of one candidate for the other, according to the marks awarded to him in the viva vote test. His Lordship referred to the percentage of marks allocated for the cases of selections to the Indian Administrative Service and other allied services which was 12.2% and that had been found to be fair and just. It was, therefore, directed that in the 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. As a result of the amendment made in the Rajasthan Judicial Service Rules in the year 1986, the marks allocated for viva voce test have been brought down to minima and they are not more than 12.2%
9. The real question calling for determination in the present writ petition is whether the prescription by provision (1) to Rule 19 of the Rules of the requirement for a candidates to obtain 45% marks of the aggregate marks of both the written examinaton and interview, is arbitrary and voilative of Arts. 14 & 16 of the Constitution of India. It was urged on behalf of the petitioner that the candidate has to secure at least 40% marks of the aggregate marks of 300 prescribed for the written examnation, i.e., at least 120 marks, to qualify for being called by the Commission for interview. However, in order to have a chance for selection, he has to obtain 45% marks in aggregate of the total marks of 335 allocated for the written examination and for interview, i.e., in all, 150 3/3 or say, 151 marks. According to the petitioner, the anomalous effect of this is that in case a candidate happens to obtain the required 120 marks out 300 marks, prescribed for written examination, i.e., 40% of 300 marks (at least 35% marks in each Law-Paper), although, he would become eligible for being called for interview, but, in order to have a possibility of selection in the recruitment, he will have to obtain at least 31 marks out of 35 marks prescribed for interview, i.e., about 89% of interview marks. It was contended that while the total marks allocated for interview were reduced by the amendment in the rules on Feb. 22,'86,no attention was paid to the consequence of prescribing and obtaining of 40% of aggregate marks allocated for written examination before a candidate could be called for interview and of prescribing 45% marks of the aggregate marks of written examination and in interview, before the Commission could recommend any candidate for appointment. It is on account of this inadvertent lapse that the anomalous result follows that even if a candidate secures 40% of the aggregate marks of the written examination (with 35% of more marks in each Law-Paper) and becomes ligible for being called for interview by the Commission, he will have to obtain as high as 89% marks in interview so have a chance for selection. Thje learned Counsel for the petitioner submitted that prescription of 40% marks of the aggregate marks in written examination for making a candidate eligible for interview and of overall aggregate of 45% marks on its face, is arbitraary, unreasonable, unfair and unjust. It gives high weightage to the interview test compared to the written test and violates the provisions of Arts. 14 & 16 of the Constitution of India.
10. We have given our earnest consideration to the contentions put forward by the learned Counsel for the petitioner. If we look the matter from another angle, it would appear that 45% of 35 marks allocated for interview comes to 15 3/4 marks. A candidate who secures 15 3/4 marks, will, in order to have a chance of selection, have to secure 1351/4 marks in the written examination, i.e., 45% of the 300 marks. It appears that the petitioner is giving more than due importance that the petitioner is giving more than due importance to the fact that the rules provide that the Commission shall call for interview such of the candidates as have obtained a minimum of 35 marks in each of the Law-Papers and 40% marks in the aggregate. He is underminding the main and substantial requirement provided for in the rules that persons who obtained 45% marks of the aggregate marks of both the written examination as well as the interview are only eligible to be considered for selection to the post of Munsif-cum-Judicial Magistrate in the Rajasthan Judicial Service. Obtaining of 45% marks of the aggreagate marks is the prime requirement for having a chance of selection. Merely because a candidate become eligible for being called for interview on Account of the fact that he had obtained 40% marks of the aggreagate marks of the written examination, that alone does not give him any chance of selection, in view of the overall requirement of 45% marks of the aggregate marks of both written examination as well as interview. As already stated, 45% marks of the aggregate marks of written examination comes to 135 1/4, and the petitioner had obtained only 131 marks out of 300 makrs of thw ritten examination. Natuarally, therefore, in order to have any chance of selection, he had to shine in interview. In substance, the rules prescribe for obtaining 45% marks of the aggregate marks. These 45% marks are, as a matter of fact, even less than prescribed for a Second Division marks in academic studies. Prior to the year 1962, the prescription of overall percentage was 50%, which we have reduced to 45%. Further lowering of the percentage would only result in deterioration of the standard of educational and other attainments needed for officers who man Judicial Service. We are of the opinion that prescription of 40% of the aggregate marks in the written examination for making a candidate eligible for being called for interview and of overall aggreagate of 45% marks of the total marks of written examination and interview on its face, is not arbitrary, unreasonable, unfair and unjust. For any candidate, appearing for recruitment to RJS, his aim has always to be to secure more than 45% marks in the written examination papers. It is pertinent to note that no minmum percentage of marks' is prescribed in the rules for interview. Thus, a candidate, who secures a good percentage of marks in the written examination papers, can always be selected even if he secures negligible marks in the interview. Thus, unde weightage has not been given to interview test, compared to the written test; and there has been no violation of the provisions contained in Article 14 & 16 of the Constitution.
11. We though it proper to know as to what was the position regarding percentage of marks prescribed for recruitment to the Judicial Service in other States in India, and a comparative chart has been produced by the parties which form spart f the record of this writ petition. In Uttar Pradesh, no minimum percentage of marks is prescribed for written examination or interview or both. All that is mentioned Rule-19 of the U.P. Rules is that the Commission shall prepare a list of candidates in order of their proficiency as disclosed by the aggregate marks finally awarded to each candidate. There is a proviso attached to the rule that in making their recommendations, the Commission shall satisfy themselves that the candidate has obtained such an aggregate of marks in the written test that he is qualified by his ability for appointment to the service. In any event, no minimum percentage is prescribed for interview. In Orissa, minimum 40% marks are required for written examination, but, no minimum percentage of marks is required for viva voce test. In Bihar, it is prescribed that the Commission shall have a discertion to fix the qualifying marks in any or all the subjects at the written examination, in consultion with the Patna High Court. However, there were to be no qualifying marks for the viva voce test. The marks obtained at the viva voce test are added to the marks obtained at the written examination, and the names of candidates are then arranged in order of merit. In Assam, Nagaland, Meghalaya, Manipur and Tripura, no minimum percentage of marks is prescribed for written examination or interview or both. In West Bengal, there are no separate qualifying marks for any individual subject or for the personality test and merit of each candidate is determined on the basis of the total marks on tained by him in all the written papers of the examination and the personality test, and the Commission has discretion to fix qualifying marks in aggregate. In Himachal Pradesh, 45% marks in the aggregate of all the papers and at least 33% marks in Hindi language Paper are prescribed. No minimum marks for interview marks of written test and interview are prescribed. In Andhra Pradesh, a minimum 40% marks in each paper in case of general category candidates in prescribed, but, no minimum marks for interview and no overall percentage of marks of written test and interview is prescribed. Punjab Rules are idential to that of Himachal Pradesh. Delhi Judicial Service Rules, 1970 provide for 60% marks in written examination, for general category candidates; and 50% marks for SC and ST candidates. Only such candidates are called for viva voce who have obtained 50% marks in each written paper and 60% in aggregate (amoungst general category) and 40% marks in each written paper and 50% marks in the aggregate (in S.C. and S.T. category). The marks obtained in the viva voce are added to the marks obtained in the written papers and the candidates position depends on the aggregate of both. Haryana Rules (as in March, 1984), provided that no candidate shall be called for viva voce test unless he obtained at least 45% marks in the aggregate in all the written papers and 33% marks in Hindi language Paper. No candidate is considered to have qualified in the examination unless he obtains at least 55% marks in the aggregate of all papers including the viva voce test. This was the position prior to the decision in Ashok Kumar Yadav's case. The total marks for interview were 200. In Bombay and Gujarat, only interview is provided for. The Commission has to invite a representative of the High Court to be present at the interview held for the purpose, and the representative so present can take part in the deliberations of the Commissions, but, is not entitled to vote. In Sikkim, the selection is made by a Selection Committee consisting of the Chief Justice of Puisne Judge of Sikkim High Court nominated by the Chief Justice and Chief Secretary with the Registrar of the High Court acting as ex officio Secretary of the Committee. Selection is made only by interview. In Kerala, direct recruitment is made by written and oral examination.
12. It would thus appear that almost in all the States in India, referred to above, in relation to recruitment to the Judicial Service, no minimum percentage of marks is prescribed for interview. It is also true that in most of the State in India, no minimum percentage of marks is required of the aggregate marks of written examination plus interview. In Orissa and in Andhra Pradesh, obtaining of minimum of 40% marks is prescribed for written examination. In Himachal Pradesh and in Punjab, the percentage required in the written examination is 45%. However, in Delhi Judicial Service, 60% marks in the written examination is prescribed for general category of candidates and 50% marks in the aggregate for SC and ST Category candidates.
13. Minimum qualifying makrs for interview can of course be prescribed subject to the condition that the prescribed minimum percentage should not be unduly high. In Mehmood Alam Tank and Ors. v. State of Rajasthan , prescirption of minimum of 33% marks in the personality and viva voce examination by the Rajasthan State and Subordinate Service (Direct Recruitment by Combined Competitive Examination) Rules, 1962, was held not to be invalid. Similarly, in State of Uttar Pradesh v. Rafiquddin 1987 (Supple. SCC 401), fixation of 35% minimum marks for viva voce test by the commission in pursuance of Clause (ii) of the proviso to Rule-19 (as it stood prior to 1972 amendment) of the U.P. Civil Services (Judicial Grounds) Rules, 1951, was held not to be legally infirm. The decision in Durga Charan Misra v. State of Orissa , dealt with recruitment of probationary Munsifs in Orissa State Judicial Service. In Orissa rules, there was no rule prescribing a minimum qualifying marks for viva voce. Rule-1 of the Orissa Rules provided that the marks obtained at the viva voce test shall be added to the Marks obtained in the written examination. According to Rule-16, the Commission was to summon for viva voce test candidates who had secured at the written examination not less than the minimum qualifying marks obtained in all the subjects taken together which shall be 30% of the total marks in all the papers. It was held that the Commission had no power to exclude the name of any candidate from the Select List merely because, he had secured less marks at the viva voce test. The other similar authorities on the point are in P.K. Ramchandra Aaiyar v. Union of India ; and Umesh Chandra Shukla v. Union of India . Thus, neither prescription of a reasonable minimum percentage of marks in viva voce examination nor non-prescription of teh minimum qualifying marks for viva voce test makes the relevant rule invalid. What has been held to be invalid was the prescription of a high percentage of marks allocated for the viva voce test. In Ashok Yadav's case (supra), 33.3 marks of the total marks were allocated for interview. This was held to be high and it was held in relation to Haryana Civil Service (Executive Branch) and other allied services that where the competitive examination consists of a written examination followed by viva voce test, the marks allocated for the viva voce test shall not excewed 12.2 of the total marks taken into account for the purpose of selection. As already stated, in the RJS Rules, in the year 1986, the marks allocated for viva voce test were even brought down to minimal arid they are not now more than 12.2% of teh total marks.
14. Before parting with this order, we would only like to epress that with a view to clarify the position of teh rules, to the candidates, in a clear manner, it would be proper that the State Government, in consulation with the High Court, considers for deleting from the rules the mention that the Commssion shall call for interview such of the candidates as have obtained the minimum of 35% marks in each of the law Papers and 40% marks in the aggregate. The result of omission f teh above woiuld be that it would be clear to the candidates that they have to obtain 45% marks of the aggregate marks allocated for written examination and interview. We also leave it for consideration of the State Government, in consulation with the High Cour, whether it is at all necessary to require 45% marks of the aggregate of 300 marks of written examination plus 35 marks for interview, and whether it would not be sufficient if only 45% marks are prescribed of teh aggregate marks of 300 allocated for the written examination. We also leave it for consideration of the State Government, in consulation with the High Court, whether the prescription of 45% marks should be confined only to Law Papers (I) & (II) and not to language Papers for which a minimum 35% marks may be sufficient.
15. The result of the changes suggested by us would only enable selection of candidates who have good knowledge in legal subjects. Personality of a candidate does not have that much importance in judicial services as it has in administrative services. These are our obsevations for consideration of the State Government, in consultion with the High Court, for any change in the rules, which they consider in their wisdom, to make.
16. With the above observations, we dismiss the writ petition. In the circumstances of the case, the parties are left to bear their own costs.
17. A copy of this order be submitted before Hon'ble the Chief Justice, for his perusal and consideration.