Rajasthan High Court - Jodhpur
Mordhwaj Singh & Ors vs Rpsc &Anr on 14 August, 2012
Bench: Arun Mishra, Sangeet Lodha
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
ORDER
(1) D.B. CIVIL WRIT PETITION NO. 7316/2010 Mordhwaj Singh & Ors. Vs. RPSC, Ajmer and Anr. (2) D.B. CIVIL WRIT PETITION NO. 7097/2010 Ummeda Ram Vs. RPSC, Ajmer and Anr.
(3) D.B. CIVIL WRIT PETITION NO. 7196/2010 Harish Kumar Kataria Vs. RPSC, Ajmer and Anr. (4) D.B. CIVIL WRIT PETITION NO. 7317/2010 Laxmi Kant Verma & Ors. Vs. RPSC, Ajmer and Anr. (5) D.B. CIVIL WRIT PETITION NO. 7318/2010 Suresh Paliwal & Ors. Vs. RPSC, Ajmer and Anr. (6) D.B. CIVIL WRIT PETITION NO. 10366/2010 Ratan Lal & Ors. Vs. RPSC, Ajmer and Anr.
(7) D.B. CIVIL WRIT PETITION NO. 10520/2010 Shailendra Singh Chouhan & Ors. Vs. RPSC, Ajmer and Anr.
Date of Order :: 14/08/2012 HON'BLE THE CHIEF JUSTICE MR.ARUN MISHRA HON'BLE MR.JUSTICE SANGEET LODHA Mr. Hanuman Singh Choudhary for the petitioners. Mr. J.P.Joshi, Sr. Advocate assisted by Mr.Siddharth Joshi & Mr. Khet Singh for the respondent RPSC.
Mr. Himanshu Shrimali for respondent in CW 7318/10. Mr. G.R.Kalla, Govt. Counsel for the State.
The petitioners have filed these writ petitions questioning the process of selection adopted by the respondent Rajasthan Public Service Commission for the post of Lecturer (School Education) by holding interview and reserving 20 marks for academic qualification and 80 marks for the interview, out of 100 marks. It is submitted 2 that the process of awarding the marks in interview ignoring the opinion/marks of the subject expert is bad in law and due weightage should be given to the marks given by the subject experts. The prayer has also been made to set aside the appointments made. In the alternative, the prayer has been made to declare the Rule 19, 19A and Rule 20 of the Rajasthan Educational Service Rules, 1970 or any other rule which may come in the way of considering marks secured in the written examination, to be ultravires. Fresh recruitment process may be ordered to be initiated with selection criteria of considering marks secured both in the written examination and in the interview allocating upto 12.2% marks to the interview only.
It is averred in the Writ Petition No.7316/10 "Mordhwaj Singh & Ors. Vs. RPSC & Anr." that a select list of 222 Lecturers (School Education) has been issued pursuant to the advertisement dated 10.5.08. The Rajasthan Educational Service Rules, 1970 ("the Rules of 1970" hereinafter) prescribe two modes of appointment; one by way of direct recruitment and other by way of promotion in accordance with the provisions of Part-IV & V respectively of the Rules of 1970 for the post in question i.e. Lecturer (School Education). The petitioners being eligible applied for the posts which were advertised pursuant to advertisement dated 10.5.08. The number of 3 posts was increased by way of issuing corrigendum. The petitioners are having qualification of Ph.D., M.Phil, SLET, NET, JRF etc. A written test was to be conducted as mentioned in the advertisement for the purpose of screening to reduce the number of candidates for the purpose of interview. It was also mentioned in the advertisement that the screening test was to be conducted at Ajmer. It was also mentioned that the screening test examination may be objective type or descriptive type. It was not mentioned in the advertisement that whether the marks obtained in screening test will not be taken into consideration while preparing the final result. The RPSC conducted the screening test by prescribing question paper which was objective type of 100 marks and provision for negative marking was also made. It is submitted that the respondent RPSC declared the select list only on the basis of the marks obtained in the interview and academic qualification. The marks obtained in the written examination held for the purpose of screening were not added. The petitioners have submitted that the marks obtained in the screening test ought to have been added. The RPSC has failed to conduct the process of selection in fair and transparent manner. The selection process is contrary to various decisions of the Hon'ble Supreme Court and Rules 19, 19A, 20 & 20A of the Rules of 1970. The petitioners 4 have emphasized on due compliance of the provisions contained in Rule 19A of the Rules of 1970. It is averred that the selection by way of interview is great hazardous. Hence the petitioners have preferred these writ petitions.
In the reply filed by the State Government in Writ Petition No.7097/10, it is contended that selections have been made as per the Rules. The amendments which have been made on 1.4.98 were with a view to prescribe the mode for direct recruitment for the post of DEO and other equivalent post. Rules 18A, 19A, 20 and 20A of the Rules of 1970 were accordingly added. The procedure has been prescribed in Rule 16 to 20 of the Rules of 1970. The appointments have been made following the procedure prescribed in the rules. An additional affidavit has also been filed on behalf of the State further clarifying that the amendments in Rules 16, 18, 18A, 18B, 19, 19A, 20 & 20A were made with a view to prescribe competitive examination for direct recruitment to the post of District Education Officer and equivalent post. The amendment made in the year 1998 was not in respect to the post of Lecturer. The respondent RPSC has also filed an affidavit in which it has been mentioned that the screening test was conducted so as to call requisite number of candidates for the purpose of interview and the sole criteria for selection was interview as per the prevailing rules. The mode of 5 selection by holding interview has been earlier adopted pursuant to the advertisement No.02/2001-02 dated 8.6.01 and again advertisement No.03/2004-05 dated 18.8.04. The mode of selection in the impugned advertisement dated 10.5.08 was also same as adopted in earlier advertisements. The rules as amended in the year 1998 were prevailing. Now the rules have been amended in the year 2011 and different procedure has been prescribed i.e. written competitive examination for direct recruitment, earlier it was not so.
Mr. H.S.Choudhary, learned counsel appearing on behalf of the petitioners submitted that when objective type written examination was held, it was incumbent upon the RPSC to include the marks so obtained by the candidates in the final result by addition of marks of interview and academic qualification as per mandate of Rule 19A of the Rules of 1970. The screening test has to be taken to be written examination for the post in question. It is also submitted that the method of appointment solely based on the marks awarded for the interview and academic qualification cannot be said to be a fair method. The marks which were reserved for academic qualification and interview could not have formed the sole basis of appointment without inclusion of the marks obtained in the written examination conducted for the purpose of screening 6 the candidates. It is further submitted that reserving 80 marks for interview and 20 marks for academic qualification cannot be said to be a fair method for selecting the candidates. Learned counsel has also relied on various decisions in this regard which will be dealt with later.
Mr. J.P.Joshi, learned Senior Advocate assisted by Mr. Khet Singh and Siddharth Joshi for the respondent RPSC and Mr. G.R.Kalla, Government Counsel for the respondent State have submitted that the controversy stands decided by the Division Bench decision of this Court in Usha Sharma (Smt.) Vs. State of Rajasthan & Ors., [2008 (1) RLW, 418], wherein this Court has upheld the method of selection by way of holding interview. It was held that selection by way of interview is not violative of Article 14 of the Constitution rather one of the well accepted modes of selection.
It was further submitted that in view of Rule 16, it is apparent that Rule 19 is not applicable with respect to the post of Lecturer, the amendment which was made in the year 1998 was with a view to incorporate the mode of examination for the post of DEO and other equivalent posts which are higher than the post of Lecturer (School Education). Thus, no case for interference is made out in the writ petitions.
In order to deal with the rival submissions made 7 on behalf of the parties, we have to consider the provisions contained in the Rules of 1970.
Rule 16 of the Rules of 1970 provides for inviting of applications. Rule 16 is quoted below :-
"16. Inviting of Applications- Applications for appearing in the competitive examination for direct recruitment to the posts of District Education Officer (Boys/Girls), Deputy Director (Junior) and Vice-Principle, I.A.S.E., Ajmer/Professor, I.A.S.E., Ajmer/Bikaner in the service and for appearing in interview for direct recreuitment to other posts in the service shall be invited by the Commission by advertising the vacancies to be filled in, in the Official Gazette or in such other manner as may be deemed fit.
A bare reading of Rule 16 makes it apparent that the 'competitive examination' was contemplated for the post of District Education Officer (Boys/Girls), Deputy Director (Junior) and Vice-Principle, I.A.S.E., Ajmer/ Professor, I.A.S.E., Ajmer/Bikaner in the service. It is also apparent that for other posts for appearing in interview for direct recruitment in the service, the applications have to be invited. Thus, for other posts method prescribed is that of interview. The applications were so invited for Lecturer (School Education) vide advertisement dated 10.5.08. In para 4 of the advertisement pursuant to which the impugned process of selection was held, it was provided thus;8
"4. सव क पर क क म ह, स न एव य जन :-
ननर ररत अननव य य गयत ए नयनतम ह और इन य गयत ओ क# ह न# स# ह अभय % स क तक र ह# त' बल ' य# ज न# क# हकद र नह ह ज त# ह+ । जब ककस ववज पन क# आर र पर प प आव#दन- पत4 क5 सखय अनरक ह ग और आय ग क# ललए इन सभ अभयथ य4 क स क तक र करन स'ववध जनक य सभव नह ह ग त आय ग ववज पन म< ननर ररत नयनतम य गयत ओ और अन'भव स# उच? य गयत ओ और अन'भव क# आध र पर अ व सव क पर क द र स क तक र ह# त' अभयथ य4 क5 सखय य थ?त स म तक कम कर सकत ह।
सव क पर क अजम#र (क ड स.-1) म< आय जजत कर य# ज न# क5 समभ वन ह। अत: आव#दक अजम#र जजल# क क ड नमबर OMR Application Form क# कDलम स० 8 म< भर# । सव क पर क ह# त' पर क क#नF क आवटन अनय पश सननक वयवस ओ क दवKगत रखत# ह'ए ककय गय ह। आय ग यदद ? ह# त उक पर क क#नF म< पररवतन कर सकत ह।"
In para 4 of the advertisement, a right was reserved to reduce the number of candidates as may be necessary for interview on the basis of prescribed qualifications and experience or on the basis of screening test.
Admittedly, in the present matters, screening test was conducted for short-listing the candidate for calling the requisite number of candidates for interview in proportion to the posts advertised and it was not a written competitive examination as contemplated under Rule 19A of the Rules of 1970 for the posts specifically mentioned in Rule 16. It was objective type screening test held so as to call the requisite number of candidates for interview. Rule 16 of the Rules of 1970 itself provides that for posts specifically mentioned in Rule, there has to be written examination and method of selection for other posts has to be by way of interview. 9 Thus, for the posts of DEO etc. specifically mentioned in the rule, which are higher posts, competitive examination is prescribed, but there is no such competitive examination prescribed for other posts as mentioned in the later part of the Rule 16.
By way of amendment in the year 1998, Rule 18A was inserted in the Rules of 1970. Rule 18A is quoted below:-
"18A:- Authority for conducting the competitive examination for the post of District Education Offcer (Boys/Girls) and other equivalent post and syllabus:- The examination shall be conducted by the commission in accordance with the scheme of examination and syllabus prescribed in schedule-VII.
Thus, by way of amendment, by inserting Rule 18A, it was provided that the examination shall be conducted by the commission in accordance with the scheme of examination and syllabus prescribed in schedule- VII. Schedule-VII prescribes the authority for conducting the competitive examination for the post of District Education Offcer (Boys/Girls) and other equivalent post, it does not deal with the post of Lecturer (School Education). Thus, it is apparent that the amendment made was in respect of District Education Officer and other equivalent posts.
Rule 18B also provides for admission to the competitive examination. Thus, Rules 18A and 18B of the 10 Rules of 1970 are not applicable to the present case.
Rule 19 of the Rules of 1970 as existed earlier provides for scrutiny of applications by the Commission which is quoted below.
"19. Scrutiny of applications:- The commission shall scrutinise the applications received by them and require as many candidates qualified for appointment under these rules as seem to them desirable to appear before them for interview.
Provided that the decision of the Commission as to the eligibility or otherwise of a candidate, shall be final."
Rule 19 is applicable for post of Lecturer. Rule 19A which was inserted vide notification dated 1.4.98 was with respect to the method of competitive examination to be held for the post of DEO etc. specifically mentioned in Rule 16 by way of amendment in 1998. Rule 19A of the Rules of 1970 is quoted below.
"19A. Personality and viva-voce test:-
Candidates who obtain such minimum qualifying marks in the written examination as may be fixed by the Commission in their discretion shall be summoned by them for an interview. The Commission shall award marks to each candidates interviewed by them, having regard to their character, personality, address, physique and knowledge of Rajasthani Culture. The marks so awarded shall be added to the marks obtained in the written examination by each such candidates."
A conjoint reading of the aforesaid rules makes it crystal clear that Rule 19A is in respect of the method of selection where competitive written examination is held, it is not applicable where the method of selection is by way of 11 oral interview. screening test cannot be said to be a competitive written examination of which marks could have been added in the final result. As provided in Rule 19, it is open to the RPSC to call limited number of candidates and for this purpose the applications are to be scrutinized by them and may require as many candidates qualified for appointment under these rules as seem to them desirable to appear before them for interview and for this limited purpose of short-listing the candidate screening test has been held of which marks could not be added in the final result. Rule 19A cannot be said to be applicable as it provides that the candidates who obtain such "minimum qualifying marks" in the written examination as may be fixed by the Commission, shall be summoned by them for interview. In the instant case, screening test was conducted only to short-list the number of candidates to be called lfor interview as against the number of posts advertised. No minimum qualifying marks are fixed by the Commission for screening test. Fixing of minimum qualifying marks as provided in Rule 19A is with respect to the competitive written examination. In competitive written examination , minimum qualifying marks attains significance. Thus, Rule 19A as worded is not applicable and when it is read with Rule 16 there is not an iota of doubt that for recruitment to the post in question i.e. Lecturer (School Education), the 12 method of competitive written examination is not applicable. Our conclusion is further fortified by Rule 20 of the Rules of 1970 in which provision has been made with respect to different methods of preparation of select list of the candidates. Rule 20 (1) of the Rules of 1970 provides that the Commission shall prepare a list of the candidates, whom they consider suitable for appointment to the post concerned, arranged in order of merit and forward the same to the appointing authority; sub-rule (2) of Rule 20 deals with the posts which are required to be filled-in through competitive examination and for such posts the Commission shall not recommend any candidate who has failed to obtain a minimum of 33% marks in the personality and viva-voce examination. Rule 20 is quoted below:-
"20. Recommendations of the Commission- (1) The Commission shall prepare a list of the candidates, whom they consider suitable for appointment to the post concerned, arranged in order of merit and forward the same to the appointing authority:
Provided that the Commission may also to the extent of 50% of the advertised vacancies, keep names of suitable candidates may, on requisition, be recommended in order of merit to the appointing authority within 6 months from the date on which the original list is forwarded by the Commission to the appointing authority.
(2) In respect of posts which are required to be filled in through competitive examination, the Commission shall not recommend any candidate who has failed to obtain a minimum of 33% marks in the personality and viva-voce examination :
Provided that the Commission shall in case of candidates belonging to the other Backward Classes, Scheduled Castes or Scheduled Tribes 13 and Woman candidates recommend the names of such candidates upto the number of vacancies reserved for them from amongst those who have qualified for interview, even if they fail to obtain the minimum marks in viva-voce prescribed above."
Thus, different methods of preparation of select list have already been provided under Rule 20 which also fortifies our conclusion that method contained in Rule 19A is not applicable.
The matter is no more res-integra. The aforesaid Rule and the similar process of appointment adopted pursuant to the advertisement dated 18.8.04 in which similar condition of screening test was mentioned, came up for consideration before the Division Bench of this Court in Usha Sharma (Smt.) Vs. State of Rajasthan and Ors.
(supra) and a Division Bench has upheld the selection made on the basis of performance in interview and academic qualification and the procedure adopted has been held not to be violative of Article 14 of the Constitution of India; the difference between short listing of the candidates and cut-off marks has also been taken into consideration by referring to the decision of the Hon'ble Apex Court in State of Punjab & Others Vs. Manjit Singh and Others (2003 (11) SCC 559). It has been held by Division Bench of this Court in Usha Sharma (supra) that if the marks obtained in the screening test had been taken into consideration by the 14 RPSC for assessing the merit, they would have acted in contravention of Rule 19 of the Rajasthan Educational Service Rules, 1970. Following is the discussion made by this Court in the case of Usha Sharma (supra):
"13. A close look at Rule 19 would show that upon receipt of the applications, the Commission scrutinizes the applications so received and require the qualified candidates for appointment as maybe found desirable to appear for interview. The merit of the candidates is evaluated and assessed through the process of interview from amongst the candidates qualified for appointment who have been found suitable to be called for interview."
"14. It is no longer a matter of legal debate that prescribing interview for selecting the candidates to a particular post possessing minimum academic qualifications is not violative of Article 14 of the Constitution of India. Rather, selection by interview is one of the well accepted mode of selection. The statement of law expostulated by the Constitution Bench of the Supreme Court in the case of R.Chitralekha Vs. State of Mysore and Others (AIR 1964 SC 1823), without multiplying the authorities shall suffice. This is what the Supreme Court said in this regard.
"But learned counsel for the appellant raised a larger question that selection by interview is inherently repugnant to the doctrine of equality embodied in Art. 14 of the Constitution, for, whatever may be the objective tests laid down. In the final analysis the awarding of marks is left to the subjective satisfaction of the selection committee and, therefore, it gives ample room for discrimination and manipulation. We cannot accept such a wide contention and contemn one of the well accepted mode of selection in educational institutions. James Hari in his "an introduction to Administrative Law" observes at P.180 thus:
"A test or examination, to be competitive, must employ an objective standard of measure. Where the standard or measure is wholly subjective to the examiners, it differs in effect in no respect from an uncontrolled opinion of the examiners 15 and cannot be termed competitive. "In the field of education there are divergent views as regards the mode of testing the capacity and calibre of students in the matter of admissions to Colleges. Orthodox educationists stand by the marks obtained by a student in the annual examination. The modern trend of opinion insists upon other additional tests, such as interview, performance in extra-curricular activities, personality test, phychiatric tests etc. Obviously we are not in a position to judge which method is preferable or which test is the correct one. If there can be manipulation or dishonesty in allotting marks at interviews, there can equally be manipulation in the matter of awarding marks in the written examinations. In the ultimate analysis, whatever method is adopted its success depends on the moral standards of the members constituting the selection committee and their sense of objectivity and devotion to duty. This criticism is mere a reflection on the examiners than on the system itself. The scheme of selection, however, perfect it may be on paper, may be abused in practice. That it is capable of abuse is not a ground for quashing it. So long as the order lays down relevant objective criteria and entrusts the business of selection to qualified persons, this Court cannot obviously have any say in the matter. In this case the criteria laid down by the Government are certainly relevant in the matter of awarding marks at the interview. Learned counsel contends that the ability of a student on the basis of the said criteria can be better judged by other methods like certificate from the N.C.C. Commander or a medical board or a psychiatrist and should not be left to a body like the selection committee which cannot possibly arrive at the correct conclusion in a short time that would be available to it. This criticism does not affect the validity of the criteria, but only suggests a different method of applying the criteria than that adopted by the Committee. It is not for us to say which method should be adopted; that must be left to the authority concerned. If in any particular case the selection committee abuse its power in violation of Art.14 of the Constitution, that may be a case for setting aside the result of a particular interview, as the High Court did in this case. We cannot, therefore, hold without better and more scientific material placed before 16 us that selection by the interview in addition to the marks obtained in the written examination is itself bad as offending Art.14 of the Constitution."
"15. Mr. Sanjeev Prakash Sharma even did not dispute that the selection by interview is a legally permissible mode and is not repugnant to the constitutional provisions. His whole emphasis was that having conducted a written test, the marks obtained therein could not have been ignored. The argument though attractive is not legally sound. The written test that has been held by the Commission is to sort out the large number of applications that were received for 309 posts of Hindi Teacher Grade I. The statistics reveals that for 309 posts, 15608 applications were received. Obviously, for shortlisting the applications, and in consonance with the practice and policy adopted by the Commission, the conduct of written examination can not be faulted. In our considered view, thus, for the purpose and objective for which the written examination was conducted, the marks obtained therein could not have been taken into consideration while assessing the merit of the candidates."
"16. In State of Punjab & Others Vs. Manjit Singh and Others (2003) 11 SCC 559, the Supreme Court in paragraphs 8 and 10 of the report held thus:
"But for such shortlisting as indicated above, it is not necessary to fix any minimum qualifying marks. Any candidate on the top of the list at number 1 down up to 500 would obviously constitute the shortlisted zone of consideration for selection. For the purpose of elaboration it may be observed that in case some cut-off marks are fixed in the name of shortlisting of the candidates and the number of candidates obtaining such minimum marks, suppose is less than 100, in that event screening test itself will amount to a selection by excluding those who though possess the prescribed qualification and are eligible for consideration but they would be out of the field of consideration by reason of not crossing the cut-off marks as may be fixed by the recruiting body. This would not be a case of shortlisting. In shortlisting, as observed above, any number of candidates required in certain 17 proportion of the number of vacancies, may be shortlisted in order of merit from Serial No.1 upto the number of candidates required..
As observed earlier, for the purpose of shortlisting it would not at all be necessary to provide cut-off marks. Any number of given candidates could be taken out from the top of the list up to the number of the candidates required in order of merit. For example, there may be a situation where more than the required number of candidates may obtain marks, say for example, out of 10,000 if 8000 or 6000 candidates obtain 45% marks then all of them may have to be called for further tests and interview to obtain the given ratio of candidates, and the vacancy available. For 100 vacancies at the most 500 candidates need be called. If that is so, any candidate who is otherwise eligible up to the 500th position, whatever be the percentage above or below the fixed percentage would be eligible to be called for further tests. Thus, the purpose of shortlisting would be achieved without prescribing any minimum cut-off marks."
"17. We, therefore, hold that the written test (screening test as the Commission calls it) to shortlist candidates does not suffer from any legal infirmity. If the Commission had taken into consideration the marks obtained in the written examination for assessing the merit of the candidates, they would have acted in contravention of Rule 19 of the Rajasthan Educational Service Rules, 1970."
"18. The action of the Commission also finds support from the Division Bench judgment of this court in the case of Rajasthan Public Service Commission & Others Vs. Dr. (Miss) Damyanti Dadhich etc. etc. 1983 RLR 473. In paragraph 26 of the report while dealing with almost identical rule obtaining in the Rajasthan Educational Service (Collegiate Branch) Rules, 1971, the Division Bench held thus:
"We may now proceed to examine if what the Commission has done in the instant case is in accordance with the provisions of this rule. As already stated, the Commission held screening tests in various subjects in order to weed out less suitable candidates and thus restrict the number of candidates to be called for interview. The 18 Commission did not make any distinction between candidates possessing both Master's degree and doctorate degrees and those possessing merely Master's degrees inasmuch as both category of candidates were given one and the same test. What has happened in this process is that while some candidates like the present petitioners, who possess both Master's degree as well as doctorate degrees, have failed to qualify for interview, others who possess a Master's degree alone have come out successful and qualified for the interview. A candidate who could not even score the minimum qualifying marks in the written test in a particular subject cannot legitimately claim to be suitable for appointment as a lecturer in the subject. A written test is certainly as good a test if not better one as, an interview for adjudging a candidate's suitability for appointment as a Lecturer. It will now be for the Commission to interview both categories of successful candidates and select the more suitable ones for appointment as Lecturers in their respective subject. Of course, as the learned Advocate General pointed out, the Commission will certainly given some weightage in the interview to candidates possessing degrees beyond the Master's level as compared to candidates possessing a Master's degree alone. Such weightage is bound to be given having regard to that part of the provisions of the rule which follow the proviso reproduced above."
"19. The first contention of the counsel for the appellant is, thus over ruled."
In view of the aforesaid discussion, we are of the opinion that the RPSC was right in not taking into consideration the marks obtained in the screening test in the final result as the screening test was held only for the purpose of short-listing the number of candidates for interview in proportion to the number of posts advertised, and selection was made as per the Rules of 1970 and the Rules 19, 19A & 20 cannot be said to be illegal, arbitrary or 19 ultravires.
Learned counsel appearing for the petitioners has relied upon the decision of Hon'ble Supreme Court in Ajay Hasia Vs. Khauid Mujib Sehravardi, 1981 (1) SCC 722=AIR 1981 SC 487. In the said decision, the Hon'ble Apex Court examined the scheme of the examination prescribing Viva-voce as well as written test and laid down that the procedure adopted by the society in question in granting admission cannot be regarded as arbitrary merely because it refused to take into consideration the marks obtained by the candidates at the qualifying examination, but chose to regulate the admissions by relying on the entrance test. The Apex Court further found that the marks allotted in Viva-voce were on excessive side. The ratio of the decision in Ajay Hasia's case (supra) is not attracted to the facts of the present case and the provisions in question are different and this Court has already upheld the provisions of selection made on the basis of performance in interview and academic qualification in Usha Sharma Vs. State of Rajasthan and Ors. (supra).
Learned counsel has also relied on the decision of Apex Court in Director General, Indian Council for Agricultural Research Vs. D. Sundara Raju, [2011 (6) SCC 605], in which non-promotion of respondent D. Sundara Raju to the post of Principal Scientist was 20 questioned. It was contended that selection procedure adopted by the selection committee was against the norms of the scheme. The tribunal set aside the order holding that Council had acted in arbitrary manner while allocating 50% marks for personal interview. In the aforesaid decision, allocating 50% marks for the interview was held to be unjustified particularly when the Council did not even disclose to D.Sundara Raju, the respondent, that the interview would also be held to evaluate suitability of the candidate for the said post. The procedure evolved by the selection committee was held to be arbitrary and contrary to the settled legal position. In the present case, the procedure of appointment adopted in past also was that of performance in interview and academic qualification and such procedure adopted has already been upheld by Division Bench of this Court in the decision rendered in Usha Sharma's case (supra) dated 17.7.07. Thus, there is no question of any prejudice caused to the petitioners. The petitioners were very well knowing the procedure and the provisions including the advertisement. Thus, the ratio of the decision in the case of Director General, Indian Council for Agricultural Research V/s D.Sundara Raju (supra) is not at all attracted to the facts of the present case.
The counsel for the petitioners has also relied upon a decision of Apex Court in P. Mohanan Pillai Vs. 21 State of Kerala and Ors. [AIR 2007 SC 2840] wherein it was held that the eligibility criteria as also procedure prevailing on the date of vacancy should be ordinarily followed and with respect to allocation of marks for interview and effect of enlargement of zone of consideration and cut off marks lowered without disclosing reasons, it has been held that adverse inference of favouritism should be drawn and it also amounts to malice in law. The facts of the case in P. Mohanan Pillai (supra) are not similar to the matters in hand. Thus, the ratio of the decision in P. Mohanan Pillai's case (supra) is not attracted to the facts of the present case.
Learned counsel for the petitioners has also referred to the decision in Ashok Kumar Yadav Vs. State of Haryana [1985 4 SCC 417] wherein the Hon'ble Apex Court considered the question of viva voce test. In the backdrop of the fact that close relations of some members of PSC appeared for interview before it, it was held that members should only not take part in interviewing their relations, they need not withdraw from the entire process of interview and selection and where however, the viva voce test is conducted only by a selection committee constituted for that purpose, instead of a constitutional authority like PSC, the concerned members of the committee should withdraw from the selection committee itself. The facts of 22 that case are not similar to that of the instant cases and thus, the ratio of the decision in Ashok Kumar Yadav's case (supra) is not attracted. There is no pleading of any personal bias or any close relations of the members of the selection committee appearing before it.
Learned counsel for the petitioners has also submitted that grading was awarded, not the marks to each of the candidates. We find that while grading is given then it is in the form of averaging. No prejudice would be caused on this count. Grading can some time be a safer method for arriving at the performance of a candidate. It is not a case where minimum qualifying marks have been fixed to pass in the interview. The persons who have obtained the higher grade have been appointed as per their performance. We do not find any ground to interfere on this count also.
Learned Counsel for the petitioners has also relied upon a decision of Hon'ble Apex Court in KM. Rashmi Mishra Vs. M.P.Public Service Commission and Others, [2006 (12) SCC 724]. In the said decision, the Hon'ble Apex Court considered the selection for the post of Assistant Registrar. In that context, it was held by their Lordships that such post requires no professional experience but what was required to be seen was academic qualification, experience and other abilities of the candidates, whereas the ability of communication and other skills may have to be 23 judged through interview, experience of the candidate as also the marks obtained by him in the written examination could not be ignored. Besides, the Commission had conducted the written examination and hence marks obtained by the candidates therein could have been considered by it. In the instant cases, written examination itself is not prescribed under the Rules and the screening test was held which is totally different than the competitive written examination. The marks obtained in the screening test could not have been added in the final result in these cases. Reliance placed on the aforesaid decision is of no avail considering the rules in question. The scheme of the rules in the aforesaid case was totally different than the rules in question. Thus, the ratio of the decision in KM. Rashmi Mishra (supra) is not at all attracted.
For the reasons mentioned above, the petitions are without merit and they are hereby dismissed. No costs. (SANGEET LODHA), J. (ARUN MISHRA), C.J.
RP