Himachal Pradesh High Court
Rajeev Sharma vs State Of H.P. And Ors. on 6 May, 2005
Equivalent citations: AIR2006HP83
Author: Deepak Gupta
Bench: Deepak Gupta
JUDGMENT Deepak Gupta, J.
1. This petition under Articles 226 and 227 of the Constitution of India is directed against the order of the learned Himachal Pradesh, State Administrative Tribunal (hereinafter referred to as the Tribunal) dated 30-7-2004 rejecting O.A. No. 2071/2004 filed by the petitioner challenging the selections to Veterinary Pharmacist Training Course and with a prayer that the interview process be quashed and ordered to be re-conducted.
2. Chaudhary Sarwan Kumar Himachal Pradesh Krishi Vishwa Vidyalaya Palampur, H.P. (hereinafter referred to as "the University") issued an advertisement inviting applications from eligible candidates for admission to two years Veterinary Pharmacist Training Course. Admissions to this course were to be made on the basis of written test and interview. About 700 seats were to be filled up.
3. The criteria for a candidate to be eligible to apply was that he must have passed 10+2 examination. He should have also passed matriculation with science subject. Only permanent residents of Himachal Pradesh between the ages of 18 to 28 years were eligible to apply.
4. The petitioner being eligible for admission had applied for admission to the said course. The written test was conducted on 13-7-2003. The result of the same was declared on 11-9-2003. The petitioner cleared the written test and he was called for personal interview. After the interview he was not selected and, therefore, filed an application before the Tribunal that 20% marks earmarked for the interview were very much on the higher side and gave leeway to the respondents to indulge in nepotism and unfair practices so as to give higher marks in interview to persons they wanted to favour. The petitioner also claims that about 150 candidates were interviewed by the Selection Committee in the office of the Deputy Director, Animal Husbandry, Dharamshala between 10 a.m. and 5 p.m. Thus, each candidate was interviewed for less than two minutes. According to the petitioner he was only asked the following three questions:
a) What is your name?
b) What your father is doing?
c) What place do you belong to?
5. It was alleged by the petitioner that the persons who were far below him in merit in the written test had been selected because they were awarded much higher marks in their interview. After the reply was filed the Tribunal examined the record and dismissed the petition. Aggrieved against the said order the present petition has been filed.
6. At the very outset we would like to observe that the application filed by the petitioner before the Tribunal was misconceived. In fact the Tribunal had no jurisdiction in this matter. Para 3 of the interview letter issued to the petitioner and other candidates stipulates, thus:
3. There will be no liability either on the Government of Himachal Pradesh or on the Department of Animal Husbandry, Himachal Pradesh to offer the posts of Veterinary Pharmacist on regular basis or on contract basis or in any other manner to any trainee after the successful completion of the training.
7. A perusal of the aforementioned clause clearly shows that the applications were invited not for filling up any post in the Government. The advertisement was issued inviting applications for admission to the Veterinary Pharmacist Course, that is, an educational course. The Tribunal has jurisdiction only with regard to service matters. The present case was clearly not covered under the Administrative Tribunals Act and, therefore, the Tribunal had no jurisdiction to entertain the matter. The judgment of the Tribunal is, therefore, without jurisdiction and has to be set aside. The fact that applicant himself had gone to the Tribunal would not vest the Tribunal with jurisdiction since the Tribunal lacked inherent jurisdiction to entertain or decide the application.
8. A very important question is involved in this case. What percentage of marks, if any, should be kept for interview in selecting candidates for admission to courses like those of Veterinary Pharmacist. A number of decisions of the Apex Court have been cited by both sides.
9. One of the first cases where this question arose is R. Chitralekha v. State of Mysore . This case related to admission to Medical and Engineering Colleges. The contention raised was that the system of selection by interviews is illegal inasmuch as it enables the interviewers to act arbitrarily and to manipulate the results and therefore, it contravenes Article 14 of the Constitution. The Apex Court noted that highly qualified educationists were appointed to the Selection Committees. Guidelines had been issued to the Selection Committees to allot marks in interview keeping in view the general knowledge, aptitude and personality, previous academic career including special distinction etc., N.C.C., A.C.C. etc. of the candidates. Taking into consideration all these factors the Court observed as follows:
12. . . . . . .It is, therefore, clear that the Government by its order not only laid down a clear policy and prescribed definite criteria in the matter of giving marks at the Interview but also appointed competent men to make the selection on that basis. The order of the Government does not in any way contravene Article 14 of the Constitution.
The Court further held as under:
13...We cannot, therefore, hold without better and more scientific material placed before us that selection by interview in addition to the marks obtained in the written examination is itself bad as offending Article 14 of the Constitution.
10. A similar question came up for consideration in Minor A. Peeriakaruppan v. State of Tamil Nadu . In this case the Apex Court was dealing with regard to admissions to Medical Colleges where 75 marks out of 275 marks had been earmarked for interview. The Apex Court dealing with the contention that the marks allotted to the interview were very excessive held as follows:
13. Earmarking 75 marks out of 275 marks for interview as interview marks prima facie appears to be excessive. It is not denied that the interview lasted hardly for three minutes for each candidate. In the course of three minutes interview it is hardly possible to assess the capability of a candidate. In most cases the first impression need not necessarily be the best impression. . . .
14. Even when the interviews are conducted by impartial and competent persons on scientific lines very many uncertain factors like the initial nervousness on the part of some candidates, the mood in which the interviewer happens to be and the odd questions that may be put to the persons interviewed may all go to affect the result of the interview....
x x x x x x x x x x x x x x x
18. We may note that the Committee had not divided the interview marks under various heads nor were the marks given on itemized basis. The marks list produced before us shows that the marks were given in a lump. This is dearly illegal.
11. In Dr. J.P. Kulshrestha v. Chancellor, Allahabad University , the Apex Court was dealing with a case relating to the selection of Readers by the Allahabad University. In this case while dealing with the question whether the method of interview is a proper method for selecting persons for the post of Readers, the Court observed as follows ;
10...Certainly, cases arise where the art of interviewing candidates deteriorates from strategy to strategem and undetectable manipulation of results is achieved by remote control tactics masked as viva voce tests. This, if allowed, is surely a sabotage of the purity of proceedings, a subterfuge whereby legal means to reach illegal ends is achieved. So it is that Courts insist, as the learned single Judge has, in this very case, suggested on recording of marks at interviews and other fair checks like guidelines for marks and remarks about candidates and the like. If the Court is skeptical, the record of the selection proceedings, including the notes regarding the interviews may have to be made available. Interviews, as such, are not bad but polluting it to attain illegitimate ends is bad....
12. In Ajay Hasia v. Khalid Mujib Sehravardi , a Constitution Bench of the Apex Court while considering the question of suitability of interview for admission of candidates to the Regional Engineering College, quoted with approval the following observations from the book on "Public Administration in Theory and Practice" by M. P. Sharma (para 18 of AIR):
The oral test of the interview has been much criticized on the grounds of its subjectivity and uncertainty. Different interviewers have their own notions of good personality for some, it consists more in attractive physical appearance and dress rather than anything else, and with them the breezy and shiny type of candidate scores highly while the rough uncut diamonds may go unappreciated. The atmosphere of the interview is artificial and prevents some candidates from appearing at their best. Its duration is short, the few questions of the hit or miss type, which are put, may fall to reveal the real worth of the candidate. It has been said that God takes a whole lifetime to Judge a man's worth while interviewers have to do it in a quarter of an hour....
The Apex Court then referred to O1 Glenn Stahl:
Ol Glenn Stahl points out in his book on "Public Personnel Administration" that there are three disadvantages from which the oral Lest method suffers, namely, "(1) the difficulty of developing valid and reliable oral tests, (2) the difficulty of securing a review-able record on an oral tests, and (3) public suspicion of the oral test as a channel for the exertion of political influence" and we may add, other corrupt, nepotistic or extraneous consideration. The learned author then proceeds to add in a highly perceptive and critical passage:
The oral examination has failed in the past in direct proportion to the extent of its misuse. It is a delicate instrument and in inexpert hands, a dangerous one. The first condition of its successful use is the full recognition of its limitations. One of the most prolific sources of error in the oral test has been the failure on the part of examiners to understand the nature of evidence and to discriminate between that which was relevant, material and reliable and that which was not. It also must be remembered that the best oral interview provides opportunity for analysis of only a very small part of a person's total behaviour, Generalizations from a single interview regarding an individual's total personality pattern have been proved repeatedly to be wrong.
The Apex Court then held as follows:
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.
19...Now there can be no doubt that, having regard to the drawbacks and deficiencies in the oral interview test and the conditions prevailing in the country, particularly when there is deterioration in moral values, and corruption and nepotism are very much on the increase, allocation of a high percentage of marks for the oral interview as compared to the marks allocated for the written test, cannot be accepted by the Court as free from the vice of arbitrariness... . . . . . We are of the view that, under the existing circumstances, allocation of more than 15% of the total marks for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionally invalid.
13. In Lila Dhar v. State of Rajasthan , the Apex Court was dealing with a matter relating to recruitment of Munsifs under the Rajasthan Judicial Service Rules. The Court held that the weightage to be given to the interviews depends upon the fact whether the interviews are being held for employment, the nature of employment and whether it was being held for admission to an educational course. The Court held as follows:
6. Thus, the written examination assesses the man's intellect and the interview test the man himself and "the twain shall meet" for a proper selection. If both written examination and interview test are to be essential features of proper selection, the question may arise as to the Weight to be attached respectively to them. In the case of admission to a college, for instance, where the candidate's personality is yet to develop and it is too early to identify the personal qualities for which greater importance may have to be attached in later life, greater weight has per force to be given to performance in the written examination. The importance to be attached to the interview-test must be minimal. That was what was decided by this Court in Periakaruppan v. State of Tamil Nadu , Ajay Hasia v. Khalid Mujib Sehravardi , and other cases. On the other hand, in the case of services to which recruitment has necessarily to be made from persons of mature personality, interview test may be the only way, subject to basic and essential academic and professional requirements being satisfied. To subject such persons to a written examination may yield unfruitful and negative results, apart from its being an act of cruelty to those persons. There are, of course, many services to which recruitment is made from younger candidates whose personalities are not on the thresh-old 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 mini-mum 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...
14. In Ashok Kumar Yadav v. State of Haryana , the Apex Court considered in detail the question as to how many marks should be allotted for interviews. In this case the Court was concerned with selections made by the Haryana Public Service Commission to the cadre of Haryana Civil and Allied Services. It was held that the allocation of 22.2% marks for the viva voce test in the case of Haryana Civil Services (Executive Branch) and other Allied Services were unreasonable. The Court directed as follows:
29....We would, therefore, direct that hereafter in case of selections to be made to the Haryana Civil Services (Executive Branch) and other Allied Services, where the competitive examination consists of a written examination followed by a viva voce test, the marks allocated for the viva voce test shall not exceed 12.2% of the total marks taken into account for the purpose of selection. We 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 throughout 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...
15. In Ashok alias Somanna Gowda v. State of Karnataka , the Apex Court was considering the validity of marks allotted in the interview in case of selection to the posts of Assistant Engineers, it was held as under:
2. ...However, the Rules are clearly in violation of the dictum laid down by this Court in the above-referred cases and in case the marks for viva voce would have been kept say at 15 per cent of the total marks, the appellants before us were bound to be selected on the basis of marks secured by them in interview, calculated on the basis of converting the same to 15 per cent of the total marks.
16. In St. Stephen's College v. The University of Delhi , the Apex Court held as follows:
64. The oral interview as a supplementary test and not as exclusive test for assessing the suitability of candidates for college admission has been recognized by this Court. But at the same time, to avoid arbitrariness in the selection it has been repeatedly held that there shall not be allocation of high percentage of marks for oral interview test. Where candidate's personality is yet to develop, it has been emphasized that greater weight has per force to be given to performance in the written examination and the importance to be attached to the interview test must be minimal. The Court was generally indicated that interview marks should not be more than 15 per cent of the total marks.
17. In Indian Airlines Corporation v. Capt. K.C. Shukla , where the Apex Court was considering the case of promotions to the post of Deputy Operations Manager and in Madan Lal v. State of J. & K. , where selections to the post of Munsifs in the State of Jammu and Kashmir were being made the Court upheld the viva voce examination in addition to the written test.
18. In D.V. Bakshi v. Union of India , the Apex Court was dealing with a case where the examination was for grant of licence to Customs House Agents. The Supreme Court held that in such circumstances the allocation of 50% marks was justified where the nature of the job was such that it required a well developed personality. The Court held that the test which is valid for competitive examination or admission to educational institutions may not be relevant in that case. With regard to the method of conducting the interview the Court held as follows:
7. ...If an oral test is, therefore, a 'must' as in this case, a heavy responsibility is cast on the examiners to maintain a proper record of the oral test in respect of each candidate and marks must preferably be assigned under each head considered relevant to evaluate the candidate.... That is why we have said that a heavy responsibility lies on those examining the candidates at the interview to ensure that proper record is maintain so that there is no room for suspicion in the minds of the unsuccessful candidates that the result of the oral test is tainted with bias for or against any candidate because even light proof in support of the charge may upset the result of the oral test as a whole or qua a candidate, as the case may be...
19. In Jasvinder Singh v. State of J. & K. , the Court was concerned with a case relating to the selection to the post of Sub-Inspector of Police and upheld the allocation of 20% marks for the interview.
20. The Apex Court in a recent judgment delivered in Mridul Dhar (Minor) v. Union of India was dealing with the whole gamut of questions relating to the admissions to Medical Colleges. The directions of the Court are contained in para 35. Direction No. 13 which is relevant for the purpose of the decision of the present case reads as follows:
13. For granting admission, the merit determined by competitive examination shall not be tinkered with by making a provision like grant of marks by mode of interview or any other mode.
21. From a perusal of the various judgments cited above it is clear that right from the very beginning the law has been that for admission to educational courses, where interviews are conducted, the weightage of marks given for the interview should be as low as possible. The law also is that persons of very high integrity who are impartial and known to be competent in their fields should be made members of the Selection Committee, Clear and unambiguous guidelines should be given to them. The interview marks should be awarded under various heads to make the procedure more objective and transparent. The Court has held that where young children of impressionable mind, whose personality has still to develop are to be tested, then the admission should be, as far as possible, on the basis of the performance in the written test. The importance attached to the interview should be as less as possible.
22. The Apex Court has also drawn up a clear-cut distinction between the weightage of marks to be given for interviews when admission to educational courses is to be made and the weightage, when the interviews are conducted for recruitment to services. In the latter case, the nature of the service shall also be very relevant. This would also be a relevant factor to determine what should be the weightage of marks to be given for the interview. In case the interview is of persons who are of mature age and the requirement of the job is that person's personality is well developed then obviously higher marks can be kept for the interview. There can be no hard and fast rule in this regard.
23. From the judgments noticed above it is clear that in cases relating to admission to Medical and Engineering Colleges it is held that the marks for interview should not exceed 15% of the total marks. In the latest case i.e. Mridul Dhar (Minor) (AIR 2005 SC 666), the Apex Court has held that the marks obtained in the written test should not be tinkered by making a provision for marks by way of interview or any other mode. Therefore, the Court has moved from granting 15% marks to nil marks for the interview.
24. In Ajay Hasia's case (AIR 1981 SC 487) (supra) the Apex Court, taking into consideration the drawbacks and imperfections of the overall interview test and taking special note of the conditions prevailing in the country particularly when there is deterioration in moral values and corruption and nepotism being on the increase held that more than 15% marks should not be awarded for interview. The conditions referred to by the Apex Court have unfortunately not improved. Much water has flown down the Ganges. The water is murkier not cleaner. This Court is not oblivious to the fact that standards of moral probity have fallen in the two decades since the decision in Ajay Hasia's case was rendered. Corruption and nepotism are on the increase. Therefore, there is an even greater need to ensure that the marks for interviews are further decreased, if not eliminated. As noted above in the latest judgment the Supreme Court has held that no marks should be given for interview in cases relating to admission to Medical Colleges.
25. In the present case, we are dealing with a case relating to admission to the Veterinary Pharmacist course. In the State of Himachal Pradesh there are no interviews being conducted for admission to the B.V.Sc. course which is meant for Veterinary Doctors. This Court can take judicial notice of the fact that in the State of Himachal Pradesh no interviews are being held for admission to MBBS, LL.B., B.Sc., B.A., M.A. and M.Sc. courses. These degrees are of much higher value and standard than the Veterinary Pharmacist Training Course. There is no rationale for holding interviews for a low level course like that of Veterinary Pharmacist when no interviews are being conducted for admission to courses leading to degrees/post-graduate degrees in various professional fields as shown above.
26. This Court in Ravinder Baloria v. State of H.P. CWP No. 722 of 2004, wherein a similar question was raised with regard to the validity of interviews test and the weightage to be given to such interview test for admission to candidates to the Junior Basic Training Course (JBT), by order dated 20-12-2004, held that the State Government should carry out the admissions strictly on the basis of the marks obtained in the written test without taking into consideration the marks obtained in the interview. In that case, this Court has held as follows:
Taking into consideration the entire law cited before us, it is no doubt true that the Supreme Court has held that viva voce test can be held to assess the suitability of the candidates. However, the question is whether such a test is necessary for admission to a course like the JBT course. A written test is being held to assess the capability of the candidate. The candidates are only to be granted admission to JBT course. No employment is being given. In the last 10-15 years, the trend has been, that so far as, admission to educational institutions is concerned, no marks or very few marks are allotted for interviews. For admission to course like MBBS/BDS, Law, M.A. etc., no viva voce test or interviews are held. There is hardly any justification for keeping 15% marks for interview for admission to the JBT course especially when the interviews were conducted by separate interview Boards all over the State. Every interview Board could have evolved its own criteria and judged the candidates in a different manner. The petitioners have not been treated equally and, prima facie, award of 15 marks for interview in the present case appears to be unjust and illegal and violative of Article 14 of the Constitution of India.
27. In the present case, it has been clearly demonstrated that more than 150 candidates were interviewed between 10 a.m. and 5 p.m. The respondents have filed a vague reply that the interviews continued after 5 p.m. but no time is given. At the most 7 hours or 420 minutes were spent. During this period the members of the Selection Committee must have had lunch and tea also. If this time is factored in, the time devoted to a candidate would be just about 2 minutes. In this period of two minutes the candidate is called. He is expected to wish the Interview Selection Committee, asked to sit down and then told that his interview is complete. That would leave less than one minute to judge the ability of a candidate. Such an interview is no more than a sham. It is much better not to have interviews and rely upon the written test than to have oral test like this.
28. In the present case the guidelines given by the respondent to the Interview Committees for holding the interviews are as follows:
...While interviewing the candidate emphasis may be given to rural background, interest towards the Animal Husbandry and preliminary knowledge of Animal Husbandry. Beside this emphasis may also be given for custom, manner and dialects of the Himachal Pradesh. In addition to this while interviewing the physically handicapped persons of each category should be (sic) assess for suitability for Veterinary Pharmacist post.
29. These guidelines, to say the least, are absolutely! Vague. The Interview Committees have been given a free hand to give marks on a lump sum basis. The marks have not been further sub-divided under different heads. This gives absolute discretion to the Interview Board and such absolute discretion cannot be vested in any authority. We also find that there were four different Selection Committees all over the State. They were headed by Deputy Directors of the Animal Husbandry Department and two members of each Committee were Veterinary Officers. This by no stretch of imagination can be called a Committee consisting of high ranking officials of unimpeachable integrity. In the present day and age such officials would be amenable to various pressures. We need not say more.
30. The main concern of the respondents should be the interest of the student community as a whole, to afford them equal opportunity for getting admission to the course of Veterinary Pharmacist. The written test appears to be the best mode. The method of interview as in the present case will result in discrimination since 20% marks have been kept for interview which lends sufficient credence to the submission of the petitioner that these marks are to be utilized to grant admission to the favourites on the basis of extraneous consideration. The Apex Court even in cases of public employment where the method of interview may have some importance, in the case of Ashok Kumar Yadav AIR 1987 SC 454 (supra) clearly stated that even with relation to recruitment to the Civil Services allocation of more than 12.2% marks is not justified. In the present case we are concerned with the admission to a vocational course which cannot even be equated with a graduate course. Young impressionable teenagers who have just finished their studies at the school level are taking this test. It would also be pertinent to notice that keeping in view the nature of the course a large number of candidates are from rural areas and some from semi-urban areas and very few from urban areas. An interview will put a candidate from the rural background at a disadvantage. As far as the academic performance is concerned it can be judged only on the basis of the marks obtained by them in the entrance examination.
31. The candidates are being selected not for any public employment but only for a two years' post-school vocational course. The manner in which the oral interview test has been conducted in the present case leaves vast scope for discrimination, manipulation and nepotism which may remain undetected under the cover of an interview. There is no reason why the respondents should insist on the interview. There are no reasons to test the personal traits of a candidate for admission to a course like the Veterinary Pharmacist course. There is Inherent weakness and infirmity in the system of interviews itself which is subjective rather than objective. The major role is played by the subjective assessment of the Selection Committee. The students who are seeking admission are young and predominantly belong to rural areas and personality of such students still remained to be developed and as such the only consideration for their admission to the course should be their academic performance.
32. Keeping into consideration the entire law cited above and the present existing situation we hold that the interview test is totally uncalled for and should not be conducted for admission to courses of the nature like Veterinary Pharmacist, JBT etc. where young boys and girls whose personality has not fully developed are to be judged. In the facts of the present case the interview test is illegal, discriminatory and suffers from the vice of arbitrariness. Hence, it is violative of Article 14 of the Constitution of India.
33. In the present case the admission to the Veterinary Pharmacist course is over and the course itself started in August, 2004. The petitioner himself has contributed to the delay since he approached the Administrative Tribunal which had no jurisdiction and has come to the Court much later. The persons who have already been selected would be affected by the result of the case. They have not been made parties to the petition. Therefore, we feel that: it would be inequitable to interfere in the selections which have taken place especially since the course started almost about 9 months back. The petitioner is, therefore, not granted any relief. However, for future we wish to clearly state that for courses such as the Veterinary Pharmacist course and similar courses of this level the selection should be based only on the basis of tangible data such as written test or marks obtained in qualifying examination but not on the basis of any interview.
34. The order of the Tribunal dated 30-7-2004 is set aside as being wholly without jurisdiction.
35. The writ petition is disposed of with the aforesaid directions with no order as to costs.