Rajasthan High Court - Jaipur
Dr. Rachita Mathur Wife Of Dr. Rishabh ... vs The State Of Rajasthan on 10 January, 2025
Author: Sameer Jain
Bench: Sameer Jain
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 15018/2024
Dr. Rachita Mathur Wife Of Dr. Rishabh Bhargawa, Aged About 31
Years, Resident Of C-37, Peeyush Path, Bapu Nagar, Jaipur.
----Petitioner
Versus
1. The State Of Rajasthan, Through Principal Secretary,
Medical Education Department, Government Secretariat,
Jaipur.
2. Rajasthan Public Service Commission, Through Its
Secretary, Ghooghra Ghati, Madarpura, Jaipur Road,
Ajmer.
----Respondents
For Petitioner(s) : Mr. RK Mathur, Sr.Adv. With Mr. Aditya Mathur For Respondent(s) : Mr. Yash Joshi for Mr. Vigyan Shah, AAG Mr. Yuvraj Samant with Ms. Neha Amola Mr. Tilak Vaid HON'BLE MR. JUSTICE SAMEER JAIN Judgment Reserved on : 20/12/2024 Pronounced on : 10/01/2025 REPORTABLE:
1. The instant petition is filed with the following prayers:
"(i) declaring the impugned condition referred in the advertisement dated 27.11.2021 under clause "Selection Procedure" under the head of "Other Details" as illegal and unconstitutional and the same may kindly be struck down as constitutionally invalid;(Downloaded on 13/01/2025 at 09:57:52 PM)
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(ii) directing the respondents to adhere to the
notification dated 23.05.2022 issued by the
Department of Personnel, Government of
Rajasthan pursuant to the selection process on the post of Assistant Professor in furtherance of advertisement dated 27.11.2021 and the selection process for the of Assistant Professor (Skin & VD) in pursuance to advertisement dated 27.11.2021 be finalized based on the selection criteria provided for in the notification dated 23.05.2022 and if the petitioner is found eligible and meritorious she may be given appointment on the post of Assistant Professor (Skin & VD) with all consequential benefits;"
FACTUAL NARRATIVE
2. The respondents issued an advertisement dated 27.11.2021 inviting applications for the post of Assistant Professors in the faculty of Skin and V.D.; governed by the Department of Medical Education under the Rajasthan Medical Service (Collegiate Branch) Rules, 1962 (herein after referred to as "the Rules of 1962"). The written examination qua the said advertisement was scheduled on 06.05.2022 wherein the petitioner (upon having requisite qualifications) appeared and the answer key qua the same was issued on 10.06.2022.
3. Vide an erstwhile batch of writ petitions (SB Civil Writ Petition No.1777/2022 titled as Hariom Meena & Ors. Vs. State of Rajasthan & Anr.; SB Civil Writ Petition No.4027/2022 titled as Dr. Rajveer Singh & Ors. Vs. State of Rajasthan & Ors. & SB Civil Writ Petition No.5035/2022 titled as Dr. Rajmal Meena Vs. State of (Downloaded on 13/01/2025 at 09:57:52 PM) (3 of 38) [CW-15018/2024] Rajasthan & Ors.) the improper computation of the back-log vacancies for SC/ST category candidates in pursuance with the advertisement dated 27.11.2021, for the post of Assistant Professors was assailed (Annexure-1). In the said batch of petitions the Court vide order dated 04.05.2022 directed the respondent-Rajasthan Public Selection Commission (hereinafter referred to as "RPSC") to not declare the result qua the said recruitment examination. Resultantly, no substantial progress was made by the respondents in furtherance to the advertisement dated 27.11.2021. Nevertheless, the said petitions were decided considering the mutual consensus drawn amongst the parties.
4. Upon acknowledging the said interim protection dated 04.05.2022, the petitioner herein moved an application for impleading her in array of the respondent parties. Vide order dated 20.05.2024 (Annexure-3) the said application of the petitioner was allowed and she was impleaded as a respondent-party. However, the said petition was decided vide order dated 24.05.2024 (Annexure-4).
5. It is pertinent to note that the petitioner moved an application to apprise the Court with the terms and conditions of notification dated 23.05.2022, issued by the Department of Personnel, Government of Rajasthan; whereby it was notified that in order to ensure the selection of meritorious candidates and to make the selection process fair and transparent, the interview marks were fixed to maximum of 10% of the total marks (Annexure-2). Thereby, the petitioner had sought directions against the respondent-RPSC to confine the interview marks only (Downloaded on 13/01/2025 at 09:57:52 PM) (4 of 38) [CW-15018/2024] upto 10% of the total number of marks. The said application of the petitioner was disposed of vide order dated 30.05.2024 with directions that the order dated 24.05.2024 shall be read harmoniously with the notification dated 23.05.2022, No. F.1(2)DOP/A-II/97 Pt., qua the instant selection process (Annexure-6).
SUBMISSIONS MADE BY THE LEARNED COUNSEL REPRESENTING THE PETITIONER
6. At the outset, learned senior counsel along with assisting counsel have averred that the instant petition is neither barred by the doctrine of delay and laches as ever-since 2022 and interim protection was operative qua the instant impugned examination, nor the petitioner is hit by the doctrine of estoppel and acquiescence. Moreover, the action of the respondent-RPSC of not complying with the directions as spelled out in the notification dated 23.05.2022 are violative of the petitioner's fundamental rights as enshrined under the provisions of Articles 14, 16 and 21 and the Article 141 of the Constitution of India.
7. Learned senior counsel appearing for the petitioner had further averred that the criteria for selection upon the said posts was by interview with a caveat that if in case the number of applications received will be more than the total number of vacancies available, the Commission may take screening examination. The said selection criteria was based upon Rule 19 of the Rules of 1962, which was amended vide notification dated 23.05.2022, wherein it was explicitly noted that if a written examination was also scheduled prior to the interview round, the (Downloaded on 13/01/2025 at 09:57:52 PM) (5 of 38) [CW-15018/2024] weightage of marks qua the interview shall not exceed 10% of the total number of marks.
8. It was further contended that subsequent to the order dated 30.05.2024 the respondent-State and RPSC moved separate applications (Annexure-7 and 8) for recalling of the order dated 30.05.2024. Thereafter, the petitioner filed a detailed reply to the recalling applications categorically noting the fact that the notification dated 23.05.2022 has to be made applicable in furtherance on the impugned selection process. Learned senior counsel had further drawn the attention of the Court upon the timeline of the impugned examination and stated that the written examination was scheduled and conducted on 06.05.2022 and its answer key was issued on 10.05.2022; subsequently, prior to the interview process, the notification dated 23.05.2022 was issued, in the common parlance by the Department of Personnel, Government of Rajasthan on the basis of the Cabinet decision dated 10.05.2022 and the State Cabinet in an unambiguous manner after considering all the relevant factors and the Rules of 1962 had taken a decision that the interview marks for the selection process ought not to be more than 10% of the total number of examination.
9. Learned senior counsel had further contended that from a bare perusal of the timeline of events and the judicial and administrative intervention, it can be deduced that with all cannon of law, the notification dated 23.05.2022, keeping the maximum number of marks in all probabilities as 10% shall be applicable qua the instant impugned examination/selection process also. (Downloaded on 13/01/2025 at 09:57:52 PM)
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10. Nonetheless, during the course of arguments counsel representing the respondents had mentioned that qua the said examination 40% marks shall be awarded on the basis of the written examination, 20% marks on the basis of academics and the remaining 40% marks shall be on the basis of the interview; however, in the advertisement dated 27.11.2021, no such conditions/bifurcation of marks was spelled out. Moreover, the said bifurcation of marks was stipulated in a whilom advertisement dated 17.01.2020 (Annexure-11) which had zilch relevance in the facts and circumstances of the present impugned advertisement.
11. It was further averred that the contents of the affidavits (Annexure-12 and 13) filed by the Chairman of RPSC and ACS Medical are self-contradictory as in paragraph no. 3 of the said affidavit the it was stated that no examination was conducted by the respondent-RPSC prior to the notification dated 23.05.2022 where the same was made applicable whereas, in the latter paragraphs it was noted that two recruitment notifications pertaining to the posts of Occupational Therapist, 2022 and Hospital Care Taker, 2022 were notified vide advertisements dated 12.05.2022 and 23.05.2022 respectively. It is undisputed that the respondent commission received a letter dated 01.07.2022 from the Department of Health and Family Welfare, to make the conditions of notification dated 23.05.2022 applicable in the recruitment to the 55 posts of the Hospital Care Taker and letter dated 04.08.2022 to make the said notification applicable upon the recruitment qua the 24 posts of the Occupational Therapist. (Downloaded on 13/01/2025 at 09:57:52 PM)
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12. Successively, learned senior counsel had averred that the impugned conditions as referred in the advertisement dated 27.11.2021 under clause "Selection Procedure" under the head of "Other details" that the selection of the candidate shall be entirely on the basis of the interview and in event, if the applications are received in higher number, then the respondent-RPSC shall undertake the scrutiny examination and keep the number of candidates within appropriate limit. Therefore, it can be deduced that a selection process based in-toto on an interview is not only illegal and against the norms of the fair and transparent method of selection but also violative of the fundamental rights of the petitioner as enshrined under the provisions of Article 14, 16 and 21 of the Constitution of India.
13. Amongst the manifold contentions, the key contention made by the learned senior counsel was that the notification dated 23.05.2022 was published resultant to the State Cabinet meeting and the provisions of the Rules of 1962, wherein clause (2) of the said notification categorically states that the State Government cannot take a plea that the notification dated 23.05.2022 can only be applied prospectively. Thence, the said notification is ought to have a retrospective effect upon all the similarly situated examinations/selection processes as per the provisions of Rule 19 of the Rules of 1962.
14. At this nascent juncture learned counsel appearing for the petitioners have placed reliance upon a catena of judgments passed by various High Courts and Hon'ble Apex Court. Some of the relied upon dictums amongst others were Ajay Hasia & Ors. (Downloaded on 13/01/2025 at 09:57:52 PM)
(8 of 38) [CW-15018/2024] Vs. Khalid Mujib Sehravardi & Ors. reported in (1981) 1 SCC 722, Ashok Kumar Yadav & Ors. Vs. State of Haryana & Anr. reported in AIR 1987 SC 454 and Praveen Singh Vs. State of Punjab & Ors. reported in (2000) 8 SCC 633. Whilst placing reliance upon the afore-cited judgments it was contended that in situations where the conditions of the advertisement are per-se arbitrary, illegal and as per the provisions of Rule 19 of the Rules of 1962, the beneficial grant of notifications in consonance with the Cabinet decisions should be enforced.
SUBMISSIONS MADE BY THE LEARNED COUNSEL REPRESENTING THE RESPONDENTS. 15. Per contra, learned counsel representing the
respondents in one voice have stoutly opposed the contentions made by the learned counsel appearing for the petitioner and have raised a preliminary objection qua the maintainability of the instant petition and the same being hit and barred by the principle of delay and laches as the same is filed after a delay of approximately three years (in the year 2024), assailing a selection process/examination which was advertised way back in the year 2021 and qua which the written examination was scheduled and conducted in the year 2022 wherein even the petitioner had appeared.
16. Learned counsel representing the State had further averred that the full Commission of the respondent-RPSC had taken a decision to allocate the weightage of final marks in the method 40% weightage of the marks obtained in screening (Downloaded on 13/01/2025 at 09:57:52 PM) (9 of 38) [CW-15018/2024] examination, 20% for academics and 40% of marks obtained in the interview. Wherein, on the posts where there was no requirement to conduct a screening examination the allocation of marks was 40% weightage to academics and 60% to the interview. However, subsequently i.e. on 23.05.2022 (even after the date of written examination of the instant selection process) a notification was issued by the State government amending the provisions of various service rules, whereby the amendment in the provision relating to the "Scrutiny of applications and examinations" was done and the weightage of the interview marks were restricted to 10%. Therein, it was also mentioned that the amendment rules shall come into force from the date of publication. Hence, no retrospective effect could be granted.
17. To substantiate the contentions made insofar, learned counsel representing respondents had placed reliance upon the ratio encapsulated in Tajvir Singh Sodhi & Ors. Vs. the State of Jammu and Kashmir reported in 2023/INSC/309, and had averred that candidates who have participated in the public examinations sans any demur or protest cannot challenge the same after being declared unsuccessful. The candidates cannot approbate and reprobate at the same time. Moreover, simply because the result of the said selection process was not palatable to a candidate, he/she cannot allege that the process of interview was unfair or that there was some lacuna in the process.
18. Learned counsel had also placed reliance upon a catena of judgments passed by the Hon'ble Apex Court, a few of them amongst others were Madhya Pradesh Public Service (Downloaded on 13/01/2025 at 09:57:52 PM) (10 of 38) [CW-15018/2024] Commission Vs. Navnit Kumar Potdar reported in (1994) 6 SCC 293, A.P. Public Service Commission Vs. Baloji Badhavath reported in (2009) 5 SCC 1, Rekha Sharma Vs. Rajasthan High Court - Civil Appeal No. 5051 of 2023, Jugal Kishore Sevda Vs. the State of Rajasthan - DBCWP No. 17377/2024, Tej Prakash Pathak Vs. Rajasthan High Court reported in 2024 INSC 847, Anzar Ahmad Vs. the State of Bihar and Ors. reported in 1994 (1) SCC 150.
19. Consecutively, learned counsel had placed reliance upon the note-sheet of RPSC numbering 80/247 to 89/256 dated 09.05.2022, which was applicable qua the present advertisement also and had averred that the provisions of Rule 19 of the Rules of 1962, in the pre-amendment publication, will be applicable qua the petitioner upon a conjoint reading with the terms and conditions of the advertisement and the Full Commission decision of allocating 40% marks qua screening test, 20% marks for the academic performance and 40% qua the interview and where screening test is not required, allocation of marks will be 40% to the academics and 60% to the interview.
20. Moreover, the petitioner had not assailed the validity of Rule 19 of the Rules of 1962, hence, at this nascent juncture cannot plead to remove the criteria of 100% interview. Withal, the provisions of Rule 19 of the Rules of 1962 are not mandatory in nature and are discretionary; thence the respondent-RPSC in its discretion had defined its own mode and method of selection. It was further contended that the said selection process was carried out according to the conditions mentioned in the advertisement, (Downloaded on 13/01/2025 at 09:57:52 PM) (11 of 38) [CW-15018/2024] pre-amended Rule 19 of the Rules of 1962 and in-line with the provisions of Article 309 of the Constitution of India. Therefore, it cannot be said that the said recruitment process was conducted in an un-bias or non-transparent manner.
21. Lastly, learned counsel representing the respondents endorsing the aforementioned averments, in one voice have averred that the interview not only check the knowledge and intelligence of a candidate, but also the over-all personality, presentation, mental ability to handle pressure, promptness and confidence, and the said qualities are warranted qua the said post. DISCUSSION AND FINDINGS
22. Upon an assiduous scanning of the record, considering the aforementioned facts and circumstances of the case, considering the judgments cited at the Bar and taking note of the arguments averred by the learned counsel for the parties, this Court at this juncture, deems it appropriate to jot down indubitable facts:-
22.1 That the respondent-RPSC issued an advertisement bearing No.06/2021-22 dated 27.11.2021 for the post of Assistant Professor under the Rules of 1962; inviting online applications for 337 posts in different faculties, wherein from serial No.1 to 24, posts were for Broad Specialty and from serial No.25 to 43 the posts were for Super Specialty faculties.
22.2 That as per the "Other details" and the "Selection process" the criteria mentioned was by direct mode of selection by an interview with a caveat that if in case the number of candidates/application forms received was exceeding the (Downloaded on 13/01/2025 at 09:57:52 PM) (12 of 38) [CW-15018/2024] advertised posts, the Commission would be at a liberty to conduct a screening test. The relevant extract from the said advertisement is reiterated herein below:
" p;u izfdz;k :
vH;fFkZ;ksa dk p;u lk{kkRdkj ds ek/;e ls fd;k tk;sxkA ;fn foKkiu ds vk/kkj ij izkIr vkosnu i=ksa dh la[;k vf/kd gksxh rks vk;ksx laoh{kk ijh{kk vk;ksftr dj vH;fFkZ;ksa dh la[;k ;Fkksfpr lhek rd de dj ldrk gSA"
22.3 That the primary contention of the petitioner is that on account of amendment in the provisions of Rule 19 of the Rules of 1962, vide notification dated 23.05.2022, the criteria of selection is written examination along with interview with the rider that weightage to the interview marks shall not be beyond 10% of the total marks in any selection process. It is apprehended by the petitioner that more than 10% marks will be allocated towards interview, which will change the merits moreover, the same shall not be a transparent and un-biased manner for selection via a public examination.
22.4 That the selection criteria were envisaged under the provisions of Rule 19 of the Rules of 1962, which was amended vide notification dated 23.05.2022. For the sake of convenience the pre and post amendment provisions of Rule 19 of the Rules of 1962 is reproduced herein below:
"Post-amendment:
19. Scrutiny of applications and examination.-
(1) The applications received by the Commission which are found to be incomplete shall be rejected buy them. Before appearing in the examination, it should be ensured by the candidates himself/herself (Downloaded on 13/01/2025 at 09:57:52 PM) (13 of 38) [CW-15018/2024] that he/she fulfills the conditions in regard to age, educational qualifications, experience, if any, etc. as provided in these rules. Being allowed to take the examination shall not entitle the candidate to presumption of eligibility. The commission shall scrutinize later on the applications of such candidates only as qualify in the written examination and shall call only the eligible candidates for interview. (2) The candidates shall have to appear in the written examination and the candidates who obtained such marks as may be fixed by the Commission in their discretion shall be summoned by the Commission for interview shall have to appear in interview. The allocation of marks for interview shall not be more than 10% of the total marks taken into account for the purpose of selection.
Prior to the amendment:
"19. Scrutiny of applications- The Commission shall scrutinize 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."
22.5 That the last date for submitting the said online applications for the said recruitment was 22.12.2021 and the petitioner had applied for the post of Assistant Professor in the Department of Skin and V.D., for which, three posts were advertised.
22.6 That in the erstwhile round of litigation, wherein the petitioner was one of the impleaded party by way of her (Downloaded on 13/01/2025 at 09:57:52 PM) (14 of 38) [CW-15018/2024] application filed under Order I Rule 10 of CPC; the said petition was filed assailing the non-consideration and mis-computation of the backlog vacancies qua the SC and ST candidates. The said petition i.e. SB Civil Writ Petition No.1977/2022 (Supra) was decided vide judgment dated 30.05.2024. Subsequently, a review petition was filed.
22.7 That resultant to the said petition an interim protection (order dated 04.05.2022) was operative, whereby it was directed that the respondent-RPSC shall not release the results qua the impugned selection/recruitment procedure. The relevant extract of the interim protection order dated 04.05.2022 is reproduced herein below:
"04/05/2022 Counsel for the respondent(s) seeks one week's time to file reply.
Time prayed for is allowed.
The matter relates to non-application of reservation in the advertisement in question. Meanwhile, the respondent-RPSC is directed not to declare the result in pursuance to the advertisement dated 27.11.2021. However, the respondent(s) are at liberty to file application for modification/vacation of this order after filing of the reply.
List along with S.B. Civil Writ Petition
No.4027/2022 on 16.05.2022."
22.8 That the written examination (screening test) qua the
impugned selection process was scheduled and conducted on 06.05.2022 and the result qua the same was released by the respondent-RPSC on 10.05.2022. From the said timeline it can be noted that the petitioner and the similarly situated persons have (Downloaded on 13/01/2025 at 09:57:52 PM) (15 of 38) [CW-15018/2024] assailed the illegalities of the instant selection process prior to the conduct of the said examination.
22.9 That on 10.05.2022 a State Cabinet meeting was held and upon considering the vital circumstances, the same resulted to issuance of notification dated 23.05.2022. the relevant extract from the said minutes of meeting is reproduced herein below:
^^cSBd esa ,sls in ftudh dk;Z izd`fr ,oa Hkwfedk ds dkj.k p;u izfdz;k esa lk{kkRdkj vko';d ugha le>k x;k gS] muesa lk{kkRdkj ds izko/kku gVkus ,oa ,sls in ftuesa laokn dkS'ky dh vko';drk gS muesa Hkkjkad dqy vadksa dk vf/kdre 10 izfr'kr fu/kkZfjr djus ds fy, la'kks/ku dk fu.kZ; fd;k x;k gSA lkFk gh jktLFkku yksd lsok vk;ksx }kjk lh/kh HkrhZ ds tfj;s Hkjs tkus ftu inksa ds fy, lk{kkRdkj dk izko/kku gS] mu inksa esa jktLFkku jkT; ,oa v/khuLFk lsok,a ¼la;qDr izfr;ksxh ijh{kk }kjk lh/kh HkrhZ½ fu;e 1999 ¼vkj,l HkrhZ½ ,oa dqN fof'k"V lsok fu;eksa dks NksM+dj vU; lHkh lsok fu;eksa esa lk{kkRdkj dk izko/kku gVkus dk fu.kZ; fy;k x;k gSA** 22.10 That the Court to attain a better clarification qua the whilom practice adapted by the respondent-RPSC to conduct such examinations, the record was called. Upon a perusal of the records of the RPSC, it is revealed that a decision was taken vide note sheet dated 10.05.2022, wherein in the diary, pertaining to present advertisement, the RPSC vide serial No.80/247-89/256 has taken following decision:
"80@247 d`i;k iSjk 50@uksV dk voyksdu djsaA blds rgr vk;ksx fpfdRlk f'k{kk foHkkx ds lgk;d vkpk;Z ds czkWM Lis'kfyVh ,oa lqij Lis'kfyVh ds fofHkUu inksa ij HkrhZ ds lEcU/k esa ;g fofHkUu fo"k;ksa ftuesa vkosnu i=ksa dh vf/kd la[;k gS] ds fy, laoh{kk ijh{kk fnukad 05 ,oa 06 ebZ] 2022 dks vk;ksftr fd;k tkuk izLrkfor fd;k x;k Fkk blds lkFk gh lEiw.kZ vk;ksx dh cSBd fnukad 10-03-2022 esa fn, x, funsZ'kksa ds dze esa fofHkUu U;kf;d fu.kZ;ksa ds n`f"Vxr leqfpr fof/kd ijh{k.k o lEiw.kZ rF;ksa o ifjfLFkfr;ksa dk v/;u dj ijhiw.kZ izLrko vk;ksx ds le{k fu.kZ;kFkZ izLrqr fd;s tkus ds funsZ'k fn, x, FksA mDr iSjk 60@uksV ij vafdr (Downloaded on 13/01/2025 at 09:57:52 PM) (16 of 38) [CW-15018/2024] izLrko ij lEiw.kZ vk;ksx }kjk ifjlapj.k ds ek/;e ls fopkj fd;k x;k ,oa iSjk 60&,@uksV ij iqf"V dh xbZA 81@248 bl dze esa lEiw.kZ vk;ksx dh cSBd fnukad 10-3-2022 easa ,ts.Mk la[;k 1] ij fy;k x;k fu.kZ; mYys[kuh; gS] tks ist&1 ij miyC/k gSA bl lEca/k esa vk;ksx ds fofHkUu vuqHkkxksa }kjk ijh{k.k fd;k x;kA fu;e vuqHkkx }kjk izdj.k esa iSjk 25&26@uksV ij fVIi.kh dh xbZ gS fd jktLFkku fpfdRlk lsok ¼dkWfyft,V czkap½ fu;e] 1962 ds vUrxZr lgk;d vkpk;Z ds in gsrq lh/kh HkrhZ dsoy lk{kkRdkj ds ek/;e ls Hkjs tkus dk izko/kku mYysf[kr gSA 82@249 blh izdkj iSjk 27 ls 31@uksV ij HkrhZ xksiuh; vuqHkkx }kjk fVIi.kh dh xbZ] ftlesa fo'ks"kr% mYysf[kr fd;k x;k gS fd ;fn dfri; fo"k;ksa@fof'k"Vrkvksa gsrq laoh{kk ijh{kk vk;ksftr ugha dh tkrh gS rks] lEiw.kZ vk;ksx dh cSBd fnukad 24-04-219 easa lk{kkRdkj ds Hkkjkad ds lEcU/k esa fy, x, fu.kZ; ds vuqlkj p;u izfdz;k lEHko ugha gks ik,xhA vr% lEiw.kZ vk;ksx }kjk fnukad 24-04-2019 dks fu/kkZfjr dh xbZ p;u izfdz;k ij iqu% fopkj fd;k tkuk vko';d gksxkA 83@250 HkrhZ ^^[k^^ vuqHkkx }kjk bl lEcU/k esa iSjk 32 ls 37@uksV ij dh xbZ fVIi.kh esa vafdr fd;k x;k gS fd foKkiu ist&11 ij ij vU; fooj.k ds gSfMax esa p;u izfdz;k esa vafdrkuqlkj mDr in gsrq vH;fFkZ;ksa dk p;u lk{kkRdkj ds ek/;e ls fd;k tk;sxkA ;fn foKkiu ds vk/kkj ij izkIr vkosnu i=ksa dh la[;k vf/kd gksxh rks laoh{kk ijh{kk vk;ksftr dj vH;fFkZ;ksa dh la[;k ;Fkksfpr lhek rd de dj ldrk gSA 84@251 ijh{kk vk;kstu&11 ¼vuqHkkx½ dh fVIi.kh iSjk 13¼6½@ uksV ds vuqlkj 45 ;k blls de vkosnu i=ksa okys fo"k;ksa ,oa dze la[;k 18] 25 o 31 easa vafdr fo"k;ksa esa lh/ks lk{kkRdkj vk;ksftr fd, tk ldrs gSaA 85@252 fof/k vuqHkkx }kjk iSjk 52 ls 55@ uksV ij vk;ksx ds fu.kZ; fnukad 24-04-2019 }kjk izLrqr p;u izfdz;k@lk{kkRdkj uhfr ds fo:) ekuuh; jktLFkku mPp U;k;ky;] tks/kiqj o t;iqj esa nk;j fjV ;kfpdkvksa dk fooj.k ist&24&25 ij izLrqr fd;k x;k gSA 86@253 blh izdkj fof/k vuqHkkx }kjk izdj.k dk iqu% ijh{k.k iSjk 76 ls 79@uksV ij fd;k x;k gSA ftlesa mYysf[kr fd;k x;k gS fd lEiw.kZ vk;ksx ds fu.kZ; fnukad 24-04-2019 lk{kkRdkj gsrq laoh{kk ijh{kk ds izkIrkad] vdknfed Js"Brk o iz'uksRrj dk Hkkjkad fu/kkZfjr fd;s tkus ds lEcU/k esa fy, x, fu.kZ; ds fo:) HkrhZ [k.M ls lEcfU/kr fofHkUu ijh{kkvksa ds lEcU/k esa ekuuh; jktLFkku mPp U;k;ky; t;iqj@tks/kiqj esa ;kfpdk,a izLrqr dh xbZ FkhA ekuuh; mPp U;k;ky;] t;iqj }kjk 9 fjV ;kfpdk,a fuLrkfjr dh xbZ gSA ftudk fooj.k ist&24&25 ij miyC/k gSA ekuuh; mPp U;k;ky; }kjk mDr fu.jkZ; fnukad 08-03-2022 ist&29 esa ;kfpdkvksa dks eatwj djrs gq, vo/kkfjr fd;k gS fd vk;ksx } kjk viukbZ tkus okyh izfdz;k foKkiu esa vafdr izfdz;k ls i`Fkd ugha gks (Downloaded on 13/01/2025 at 09:57:52 PM) (17 of 38) [CW-15018/2024] ldrhA foKkiu esa laoh{kk ijh{kk ds 40 vad] 'kS{kf.kd ;ksX;rk ds 20 vad ,oa lk{kkRdkj ds 40 vad dk Hkkjkad fu/kkZfjr fd;k x;k gSA vr% lk{kkRdkj vk;ksftr fd, tkus ls iwoZ laoh{kk ijh{kk ,oa 'kS{kf.kd ;ksX;rk dk Hkkjkad tksM+s tkus pkfg,A mDr fu.kZ; ds fo:) vk;ksx }kjk [k.MihB esa vihy fd, tkus dk fu.kZ; fy;k tkdj vihy nk;j dh xbZ gSA mijksDr ;kfpdkvksa esa vkisf{kr leLr HkrhZ izfdz;kvksa esa laoh{kk ijh{kk vk;ksftr dh xbZ Fkh tks fd dsoy ek= shortlisting gsrq dh xbZ FkhA buls lEcfU/kr fu;eksa esa Li"V izko/kku gS fd vk;ksx }kjk izkIr vkosnu i=ksa dks scrutinise dj ik= vH;fFkZ;ksa dks lk{kkRdkj gsrq vkeaf=r djsxk lkFk gh bu fu;eksa ds ijUrqd esa ;g izko/kku fd;k x;k gS fd ik=rk fu/kkZj.k gsrq vk;ksx dk fu.kZ; vafre gksxkA lEiw.kZ vk;ksx }kjk tks Hkkjkad dk fu/kkZj.k fd;k x;k gS] og lk{kkRdkj ds fy, fd;k x;k gSA lk{kkRdkj cksMZ }kjk vadksa dk foHkktu fd;k tkuk iw.kZr% lk{kkRdkj cksMZ dk Lofoosdkf/kdkj gSA fpfdRlk f'k{kk foHkkx ds lgk;d vkpk;Z ds inksa ij HkrhZ gsrq vk;ksx }kjk tkjh foKkiu 27-11-2021 esa ;g Li"V mYysf[kr gS fd vH;fFkZ;ksa dk p;u lk{kkRdkj ds ek/;e ls fd;k tk,xk vkSj ;fn vkosnu i=ksa dh vf/kd la[;k gksus ij laoh{kk ijh{kk vk;ksftr dh tk,xhA jktLFkku fpfdRlk lsok ¼dkWfyftLV czkap½ fu;e] 1962 ds fu;e 19 Scrutiny of applications ist&6 esa Hkh lekukFkhZ izko/kku fd;k x;k gSA vr% fnukad 24-04-2019 dks vk;ksx }kjk Hkkjkad ds lEcU/k esa fy, x, fu.kZ; dh leh{kk fd;s tkus esa dksbZ vojks/k ugha gSA 87@254 izdj.k esa lEcU/k esa ekuuh; lnL; ¼ts-,l-vkj½ }kjk cSBd esa fn, x, funsZ'kksa ds dze esa mDr foKkiu ds rgr fofHkUu fof'k"Vrkvksa ds fy, HkrhZ fd, tkus ds fy, fuEukuqlkj izLrko izsf"kr djus ds funsZ'k fn, x, gSa%& (A) fo"k;ksa dk fooj.k ftuds lEcU/k esa vf/kd la[;k esa izkIr vkosnu i=ksa dh la[;k dks ns[krs gq, laoh{kk ijh{kk dh frfFk 05 ,oa 06 ebZ] 2022 fu/kkZfjr dh xbZ gS] ftudk fooj.k fuEukuqlkj gSa%& S.No. Subject No. of post No. of Broad/Super Application Specialisty
1. Anaesthesiology 21 331 Broad Specialisty
2. General Medicine 32 398 Broad Specialisty
3. Genral Surgery 41 296 Broad Specialisty
4. Obstetrics & 40 394 Broad Gynaecology Specialisty
5. Opthalmology 05 136 Broad Specialisty
6. T.B. & Chest 11 100 Broad Specialisty (Downloaded on 13/01/2025 at 09:57:52 PM) (18 of 38) [CW-15018/2024]
7. Orthopaedics 29 286 Broad Specialisty
8. Ortho-Rhino- 09 162 Broad Laryngology Specialisty
9. Padeatrics 22 282 Broad Specialisty
10. Psychiatry 09 118 Broad Specialisty
11. Radiodiagnosis 18 76 Broad Specialisty
12. Skin & V.D. 03 75 Broad Specialisty
13. Cardiology 07 52 Super Speciality
14. Neuro Surgery 09 57 Super Speciality (B) Assistant Professor, Geriatric Medicine, Emergency Medicine, Palliative Medicine, Medical Oncology and Paediatrics Nephrology ¼dqy 5 fof'k"Vrkvksa½ ds lEcU/k esa la'kksf/kr foKkiu tkjh dj iqu% vkosnu i= vkeaf=r fd, x, gSaA vr% mDr fof'k"Vrkvksa ds fy, laoh{kk ijh{kk vk;ksftr fd, tkus ;k lh/ks gh lk{kkRdkj izfdz;k viuk, tkus ds lEcU/k esa fu.kZ; izkIr gksus okys vkosnu i=ksa dh la[;k ds vk/kkj ij fd;k tkuk izLrkfor gSA (C) fuEukafdr fo"k;ksa@fof'k"Vrkvksa ds lEcU/k esa lh/ks lk{kkRdkj ds ek/;e ls p;u izfdz;k fd;k tkuk izLrkfor gSA lh/ks lk{kkRdkj ds ek/;e ls p;u fd, tkus dh fLFkfr esa lk{kkRdkj ds nkSjku Hkkjkad fuEukuqlkj j[ks tkus ds funsZ'k fn, x, gSa%& vdknfed ;ksX;rk & 40 vad lk{kkRdkj esa izn'kZu & 60 vad S.No Subject No. of post No. of Broad/Super . Applicatio Specialisty n
1. Pharmacology 02 23 Broad Specialisty
2. Physical Medicine & 05 22 Broad Renabilation Specialisty
3. Cardio Vascular & 05 18 Super Thoracic Surgery Specialisty
4. Gastronetrology 03 14 Super Specialisty
5. Nephrology 02 4 Super Specialisty
6. Paediatrics Surgery 05 11 Super Specialisty (Downloaded on 13/01/2025 at 09:57:52 PM) (19 of 38) [CW-15018/2024]
7. Surgical 02 24 Super Gastroenterology Specialisty
8. Surgical Oncology 04 08 Super Specialisty
9. Clinical 02 07 Super Immunology & Specialisty Rheumatology
10. Paediatrics 01 05 Super Cardiology Specialisty
11. Paediatrics 01 04 Broad Gastroenterology Specialisty
12. Paediatrics 01 4 Super Neurolotgy Specialisty
13. Paediatrics 01 01 Super Pulmonary Speciality bl lEcU/k esa mYys[kuh; gS fd la?k yksd lsok vk;ksx }kjk lk{kkRdkj ds ek/;e ls HkrhZ fd;s tkus okys ekeyksa esa lk{kkRdkj gsrq cqyk;s tkus okys vH;fFkZ;ksa dh la[;k fuEukuqlkj fu/kkZfjr dh xbZ gS & 1 in ds fy, & 12 vH;fFkZ;ksa rd 2 ls 3 inksa ds fy, & 24 vH;fFkZ;ksa rd 4 ls 6 inksa ds fy, & 36 vH;fFkZ;ksa rd 7 ls 9 inksa ds fy, & 48 vH;fFkZ;ksa rd 10 vkSj mlls vf/kd in ds fy, & 50 ;k mlls vf/kd vH;fFkZ;ksa rd inksa ds 5 xquk½ la?k yksd lsok vk;ksx }kjk viukbZ tkus okyh mDr la[;k dks n`f"Vxr j[krs gq, ekuuh; lnL; ¼ts-,l-vkj-½ }kjk mDr fof'k"Vrkvksa gsrq laoh{kk ijh{kk dk vk;kstu u dj lh/ks lk{kkRdkj fd;s tkus gsrq funsZf'kr fd;k gSA 'ks"k fuEukafdr fo"k;ksa esa izkIr vkosnu i=ksa dh la[;k dks n`f"Vxr j[krs gq, laoh{kk ijh{kk vk;ksftr fd, tkus ,oa rnqijkUr lk{kkRdkj izfdz;k viukrs gq, vk;ksx ds fu.kZ; fnukad 24-04-2019 ds vuqlkj lk{kkRdkj esa Hkkjkad j[ks tkuk izLrkfor fd;k x;k gSA bl izdkj dqy 25 fof'k"Vrkvksa esa vk;ksx ds fu.kZ; fnukad 24-04-2019 ds vuqlkj lk{kkRdkj esa Hkkjkad iwokZuqlkj ;Fkk laoh{kk ijh{kk esa izkIrkadksa dk 40 izfr'kr vdknfed dk Hkkjkad 20 izfr'kr ,oa lk{kkRdkj esa izn'kZu dk ekud 40 izfr'kr j[kk tku k gSA vr% mijksDrkuqlkj fu.kZ; gsrq izdj.k lEiw.kZ vk;ksx dh cSBd vk;ksftr dj vFkok ifjlapj.k (Circulation) ds ek/;e ls fd, tkus gsrq fopkjkFkZ ,oa vkns'kkFkZ izLrqr gSA"(Downloaded on 13/01/2025 at 09:57:52 PM)
(20 of 38) [CW-15018/2024] 22.11 That the conclusion of the afore-reiterated extract from
the note-sheet dated 10.05.2022 is explicitly admitted in the reply filed by the respondent no. 2. For the sake of convenience the relevant paragraph from the reply is reproduced herein below:
"That the Full Commission of the Respondent No.2 had also taken a decision to allocate the weightage of final marks in the method 40% weightage of the marks obtained in screening examination, 20% weightage of marks obtained for academics and 40% weightage of marks obtained in interview; which was also present in previous recruitments, [Annexure 11 - Page 130 of Paperbook of the Writ]. Wherein on the posts where there was no recruitment to host the screening examination the allocation of marks was 40% weightage to academics and 60% weightage to Interview."
22.12 That qua the records furnished by the RPSC i.e. records and details qua the preceding three selection process of akin type as that of the present advertisement (which were discussed in the Court during a camera trial hearing to maintain the secrecy) to maintain the confidentiality, it can be summarily noted that prior to reaching a conclusion the Court has perused file bearing No.F/7(35) Bharti/Confidential/2014-15, No. F7(2) Bharti/2016-17/Confidential, file No. F7(38)(5)/2018-19, certain documents pertaining to advertisement No.8/2019-20, advertisement No.4/2016 & advertisement No.3/2015-16, and other miscellaneous documents exhibiting e-mails, procedure of calling the experts and their recordings, instructions for the interviewers, instructions for the experts to formulate their (Downloaded on 13/01/2025 at 09:57:52 PM) (21 of 38) [CW-15018/2024] opinion, along with the Full Commission decision qua the impugned advertisement.
22.13 That upon a perusal of the three whilom selection procedures, the conscience of the Court is utterly shocked as it is noted that the respondent-RPSC has adopted and followed an opaque and unaccountable procedure. The respondent-RPSC had marked and addressed the doctors who were members of the interview panel as advisors and assistants likewise, no cogent rationale of the experts are noted. Therefore, it can be assumed that the experts were included in the said interviewers' panel just for a namesake purpose; they did not have any apparent stance and the marks were allotted by the members of RPSC. 22.14 That the mark-sheets that were exhibited in the records did not specify the break-up of marks or any categorical bifurcation, moreover the same were undated qua the signatures of the experts (terminology used by RPSC "advisors") nor it was undersigned by the expert. The written examination answer-sheets formulate a substantial piece of evidence, hence, are ought to be maintained with utmost cautiousness conversely, RPSC has omitted to follow the settled procedure of law and have altered the quintessential examination pattern. It is contemptible that the RPSC had not followed the ratio decidendi that is formulated by the Hon'ble Apex Court over the years.
23. Ergo, considering the aforementioned, juxtaposing the averments raised by the learned counsel for the parties, this Court deems it appropriate to allow the instant petition for the following reasons:
(Downloaded on 13/01/2025 at 09:57:52 PM)
(22 of 38) [CW-15018/2024] 23.1 Qua the impugned advertisement dated 27.11.2021 in
the advertisement criteria, as prescribed vide Annexure - 11 i.e. the advertisement dated 17.01.2020 numbering 8/2019-20 (referred as to 'previous advertisement') the selection criteria was endorsed and adopted wherein 40% marks were prescribed for screening test, 20% marks qua academic performance and 40% marks were allocated for interview and in case, the screening test is not carried out, qua some of the faculties, 40 marks will be allocated for academic performance and 60 marks to the interview. Conversely, the note-sheet dated 10.05.2022 had categorically noted that the respondents have adopted the criteria for selection process that was made applicable upon the erstwhile examination, bypassing the amended provisions of the Rules of 1962 and the criteria mentioned in the existing advertisement. Thence, it can be noted that the respondent-RPSC has changed the rules of the game mid-way.
23.2 The Court vide order dated 27.07.2024 passed in SBCWP No. 1777/2022 directed the Chairman, RPSC and Chief Secretary (Medical) to file an affidavit tendering reasonable justification qua the effect of the notification dated 23.05.2022 and whether in any other examinations the condition of the notification dated 23.05.2022 was given a retrospective effect. Resultant to the said directions the Chairman, RPSC had filed an affidavit wherein under paragraph nos. 4 to 10 it is acknowledged and stated that on the directions of the Department of Health and Family Welfare, the notification dated 23.05.2022 was made applicable qua the post of Operational Therapists, 2022 and (Downloaded on 13/01/2025 at 09:57:52 PM) (23 of 38) [CW-15018/2024] Hospital Care Taker, 2022 which were advertised vide advertisements dated 12.05.2022 and 23.05.2022. Howsoever, the ACS, Home has not given the said details and suppressed the fact, on account of which this Court is compelled to draw an adverse inference.
23.3 The preliminary issue before this Court for adjudication is that whether qua the advertisement dated 27.11.2021 (Annexure-1), the petitioner can claim the benefit of the notification dated 23.05.2022 (Annexure-2) whereby, the Rule 19 of the Rules of 1962 was amended and it was categorically stated that in the public examinations/selection process to maintain transparency and un-biasness, the maximum of 10% of the total marks of the examination can only be allotted to the interview? 23.3.1 That from a bare perusal of the impugned advertisement it can be deduced that in the same no categorical bifurcation qua the marks allotted to the written examination or interview is prescribed unlike the erstwhile advertisement i.e. advertisement dated 17.01.2020 (Annexure-11) wherein, 40% marks were prescribed for screening test, 20% marks qua academic performance and 40% marks were allocated for interview and in case, the screening test is not carried out, qua some of the faculties, 40 marks will be allocated for academic performance and 60 marks to the interview.
23.3.2 That respondent-RPSC during the process of selection/recruitment examination took a decision to apply the afore-stated bifurcation upon the instant examination. The same is (Downloaded on 13/01/2025 at 09:57:52 PM) (24 of 38) [CW-15018/2024] made unambiguous and admitted in paragraph no. 4 of the reply filed by the respondents.
23.3.3 That as per the ratio encapsulated in Ajay Hasia (Supra), it can be noted that neither an interview can be considered as principal basis of selection nor the same is an exclusive test. Moreover, the same can only be an additional stage to examine the promptness and intelligence of the candidate. The relevant extract from the afore-cited ratio is reproduced herein below:
"We would, however, like to point out that in the matter of admission to college or even in the matter of public employment, the oral interview test as presently held should not be relied upon as an exclusive test, but it may be resorted to only as an additional or supplementary test and, moreover, great care must be taken to see that persons who are appointed to conduct the oral interview test are men of high integrity, caliber and qualification.
We are of the view that, under the existing circumstances, allocation of more than 15 per cent of the total marks for the interview would be liable to be struck down as constitutionally invalid.
We think that it would also be desirable if the interview of the candidates is tape-recorded, for in that event there will be contemporaneous evidence to show what were the questions asked to the candidates by the interviewing committee and what were the answers given and that will eliminate a lot of unnecessary controversy (Downloaded on 13/01/2025 at 09:57:52 PM) (25 of 38) [CW-15018/2024] besides acting as a check on the possible arbitrariness of the interviewing committee."
(Emphasis laid) 23.3.4 That a similar view was adopted by the Hon'ble Apex Court in the dictum passed in Ashok Kumar Yadav (supra). The Court had categorically noted that in case an interview is conducted by the examination/recruitment authorities, the candidate to ultimately qualify an examination has to attain specific number of marks in the written examination. Withal, awarding extraordinary percentage to interview jeopardizes the efforts and rights of the meritorious candidates. The relevant extract from the same is reproduced herein below:
"28. The position is no different when we examine the question in regard to the percentage of marks allocated for the viva voce test in case of persons belonging to the general category. The percentage in the case of these candidates is less than that in the case of ex-service officers, but even so it is quite high at the figure of 22.2. Here also it has been pointed out by the Division Bench by giving facts and figures as to how in the case of present selections from the general category the spread of marks in the viva voce test was inordinately high compared to the spread of marks in the written examination so that a candidate receiving low marks in the written examination could be pulled up to a high position in the merit list by inordinately high marking in the viva voce test. The viva voce test in the general category, too, would consequently tend to become a determining factor in the (Downloaded on 13/01/2025 at 09:57:52 PM) (26 of 38) [CW-15018/2024] process of selection, tilting the scales in favour of one candidate or the other according to the marks awarded to him in the viva voce test. This is amply borne out by the observations of the Kothari Committee in the Report made by it in regard to the selections to the Indian Administrative Service and other allied services. The competitive examination in the Indian Administrative Service and other allied services also consists of a written examination followed by a viva voce test. Earlier in 1948 the percentage of marks allocated for the viva voce test was 22 and it was marginally brought down to 21.60 in 1951 and then again in 1964, it was scaled down to 17.11. The Kothari Committee in its Report made in 1976 pleaded for further reduction of the percentage of marks allocated for the viva voce test and strongly recommended that the viva voce test should carry only 300 out of a total of 3000 marks. The Kothari Committee pointed out that even where the percentage of marks allocated for the viva voce test was 17.11, nearly 1/4th of the candidates selected owed their success to the marks obtained by them at the viva voce test. This proportion was regarded by the Kothari Committee as "somewhat on the high side". It is significant to note that consequent upon the Kothari Committee Report, the percentage of marks allocated for the viva voce test in the competitive examination for the Indian Administrative Service and other allied services was brought down still further to 12.2. The result is that since the last few years, even for selection of candidates in the Indian Administrative Service and other allied (Downloaded on 13/01/2025 at 09:57:52 PM) (27 of 38) [CW-15018/2024] services where the personality of the candidate and his personnel characteristics and traits are extremely relevant for the purpose of selection, the marks allocated for the viva voce test constitute only 12.2 per cent of the total marks. Now if it was found in the case of selections to the Indian Administrative Service and other allied services that the allocation of even 17.11 per cent marks for the viva voce test was on the higher side and it was responsible for nearly 1/4th of the selected candidates securing a place in the select list owing to the marks obtained by them at the viva voce test, the allocation of 22.2 per cent marks for the viva voce test would certainly be likely to create a wider scope for arbitrariness. When the Kothari Committee admittedly an Expert Committee, constituted for the purpose of examining recruitment policy and selection methods for the Indian Administrative Service and other allied services took the view that the allocation of 17.1 per cent marks for the viva voce test was on the higher side and required to be reduced, it would be legitimate to hold that in case of selections to the Haryana Civil Services (Executive Branch) and other allied services, which are services of similar nature in the State, the allocation of 22.2 per cent marks for the viva voce test was unreasonable. We must therefore regard the allocation of 22.2 per cent of the total marks for the viva voce test as infecting the selection process with the vice of arbitrariness.
29. But the question which then arises for consideration is as to what is the effect of allocation of such a high percentage of marks for (Downloaded on 13/01/2025 at 09:57:52 PM) (28 of 38) [CW-15018/2024] the viva voce test, both in case of ex-service officers and in case of other candidates, on the selections made by the Haryana Public Service Commission. Though we have taken the view that the percentage of marks allocated for the viva voce test in both these cases is excessive, we do not think we would be justified in the exercise of our discretion in setting aside the selections made by the Haryana Public Service Commission after the lapse of almost two years. The candidates selected by the Haryana Public Service Commission have already been appointed to various posts and have been working on these posts since the last about two years. Moreover the Punjab Civil Service (Executive Branch) Rules 1930 under which 33. 3 per cent marks in case of ex-service officers and 22.2 per cent marks in case of other candidates, have been allocated for the viva voce test have been in force for almost 50 years and everyone has acted on the basis rules. If selections made in accordance with the prescription contained in these rules are now to be set aside, it will upset a large number of appointments already made on the basis of such selections and the integrity and efficiency of the entire administrative machinery would be seriously jeopardised. We do not therefore propose to set aside the selections made by the Haryana Public Service Commission though they have been made on the basis of an unduly high percentage of marks allocated for the viva voce test.
30. Now if the allocation of such a high percentage of marks as 33.3 in case of ex- service officers and 22.2 in case of other (Downloaded on 13/01/2025 at 09:57:52 PM) (29 of 38) [CW-15018/2024] candidates. For the viva voce test is excessive, as held by us, what should be the proper percentage of marks to be allocated for the viva voce test in both these cases. So far as candidates in the general category are concerned we think that it would be prudent and safe to follow the percentage adopted by the Union Public Service Commission in case of selections to the Indian Administrative Service and other allied services. The percentage of marks allocated for the viva voce test by the Union Public Service Commission in case of selections to the Indian Administrative Services and other allied service is 12.2 and that has been found to be fair and just, as striking a proper balance between the written examination and the viva voce test. 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 per cent 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 is 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. The percentage of marks allocated for the viva voce test case of ex-service officers may, for reasons we have already discussed, be somewhat higher (Downloaded on 13/01/2025 at 09:57:52 PM) (30 of 38) [CW-15018/2024] than the percentage for the candidates belonging to the general category. We would therefore direct that in case of ex-service officers, having regard to the fact that they would ordinarily be middle aged persons with personalities fully developed the percentage of marks allocated for the viva voce test may be
25. Whatever selections are made by the Haryana Public Service Commission in the future shall be on the basis that the marks allocated for the viva voce test shall not exceed 12.2 per cent in case of candidates belonging to the general category and 25 per cent in case of ex-service officers.
33. We accordingly allow the appeals, set aside the judgment of the Punjab and Haryana High Court and reject the challenge to the validity of the selections made by the Haryana Public Service Commission to the Haryana Civil Services (Executive Branch) and other allied services. But in view of the fact that an unduly large number of candidates were called for interview and the marks allocated in the viva voce test were excessively high, it is possible that some of the candidates who might have otherwise come in the select list were left out of it, perhaps unjustifiably. We would therefore direct that all the candidates who secured a minimum of 45 per cent marks in the written examination but who could not find entry in the select list, should be given one more opportunity of appearing in the competitive examination which would now have to be held in accordance with the principles laid down in this Judgment and this opportunity should be given to (Downloaded on 13/01/2025 at 09:57:52 PM) (31 of 38) [CW-15018/2024] them, even though they may have passed the maximum age prescribed by the rules for recruitment to the Haryana Civil Services (Executive Branch) and other allied services. We would direct that in the circumstances of the case the fair order of costs would be that each party should bear and pay his own costs throughout."
(Emphasis laid) 23.3.5 That even in the ratio encapsulated in Praveen Singh (supra) identical view was taken by the Hon'ble Supreme Court.
"9. What does Kulshreshtha's case (supra) depict? Does it say that interview should be only method of assessment of the merits of the candidates? The answer obviously cannot be in the affirmative. The vice of manipulation, we are afraid cannot be ruled out. Though interview undoubtedly a significant factor in the matter of appointment. It plays a strategic role but it also allows creeping in of a lacuna rendering the appointments illegitimate. Obviously it is an important factor but ought not to be the sole guiding factor since reliance thereon only may lead to a "sabotage of the purity of the proceedings".
A long catena of decisions of this Court have been noted by the High Court in the judgment but we need not dilate thereon neither we even wish to sound a contra note. In Ashok Kumar's case : AIR1987 SC 454 this Court however in no uncertain terms observed: There can therefore be no doubt that the viva voce test performs a very useful function in assessing the personal characteristics and traits and in fact tests the (Downloaded on 13/01/2025 at 09:57:52 PM) (32 of 38) [CW-15018/2024] man himself and is therefore regarded as an important tool along with the written examination
10. The situation envisaged by Chinnappa Reddy, J. in Lila Dhar's case [Lila Dhar v. State of Rajasthan : (1981) IILLJ 297 SC] on which strong reliance was placed is totally different from the contextual facts and the reliance thereon is also totally misplaced. Chinnappa Reddy, J. discussed about the case of service to which recruitment has necessarily been made from persons of mature personality and it is in that perspective it was held that "interview test may be the only way subject to basic and essential academic and professional requirements being satisfied" The facts in the present context deal be Block Development Officers at the Panchayat level. Neither the job requires mature personality nor the recruitment should be on the basis of interview only, having regard to the nature and requirement of the concerned jobs. In any event, the Service Commission itself has recognised a written test as also viva voce test. The issue therefore pertains as to whether on a proper interpretation of the rules read with the instructions note, the written examination can be deemed to be a mere qualifying examination and the appointment can only be given through viva voce test-a plain reading of the same however would negate the question as posed."
(Emphasis laid)
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23.3.6 Therefore, while considering the view that Hon'ble
Supreme Court has drawn over the years by a catena of judgments it can be reckoned that an examination/selection/recruitment authority while conducting a public examination has to maintain utmost cautiousness while bifurcating the marks/percentage to different levels/parts of examination i.e. written examination, interview etc. and in zilch circumstances interview can be considered the sole basis of selection. Nevertheless, Article 309 of the Constitution of India explicitly ensures the fairness, reasonableness, transparency and non-arbitrariness in the public service/recruitment examinations. Moreover, to avoid superfluous controversies and arbitrariness tape-recordings of the interviews given by the candidates can be done. It is also noted that in the public examinations which are conducted on PAN India basis for instance UPSC-CSE, the viva voce tests have maximum 10-15% weightage.
24. It is pertinent to note that the Chairman, RPSC in its affidavit (Annexure-12) has admitted the fact that qua the advertisement of Operation Therapist, 2022 and Hospital Care Taker, 2022 which were notified vide advertisement dated 12.05.2022 and 23.05.2022 respectively, the directions spelled out in the notification dated 23.05.2022 were made applicable. Thence, the stance of the learned counsel appearing for the respondents that the said notification shall have only prospective effect is extraneous.
25. Withal, it is a settled position of law that if the Cabinet has taken a conscious decision with an objective that if the written (Downloaded on 13/01/2025 at 09:57:52 PM) (34 of 38) [CW-15018/2024] examination has to be followed by an interview, the said interview shall only be of 10% of the total number of marks. Subsequently, considering the vital aspects, the warranting circumstances, with objective to maintain transparency in the public recruitments and acting harmoniously with the judgments passed by the Hon'ble Supreme Court over the years, the said condition was even inculcated in the Rules of 1962 by way of a procedural amendment of Rule 19. The Rules of 1962 regulate the recruitment to the posts and conditions of service for the Rajasthan Medical Services and the same are enforced and amended under the consent and sanction of the Governor. It is a settled position of law that the procedural laws are always retrospective in operation and create a vested right; the Rules of 1962 are one of such procedural Rules. Therefore, it is made unambiguous that the amendment to the Rules of 1962 shall have a retrospective effect and therefore, the said maximum 10% weightage to the interview, shall be made applicable qua the instant selection process.
26. It is also noted that the respondents have wrongly interpreted the judgment of Tejprakash (supra), as the act of the respondents of flouting the governing statues itself depicts that the respondents have changed the rules of the game. The same can even be corroborated with the fact that the respondents in other two examinations as mentioned above, have made applicable the condition of notification dated 23.05.2022 and in the impugned examination have adopted a deviated policy. Therefore, while maintaining the judicial parity it can be noted that in the instant matter also the respondents cannot change the rules of the game (Downloaded on 13/01/2025 at 09:57:52 PM) (35 of 38) [CW-15018/2024] during the currency of the selection process and undergo an obsolete bifurcation that was adopted in the previous advertisement (of the year 2019-20) violating the provisions of Rule 19 of the Rules of 1962.
27. Consequently, it can be inferred that the instant petition is not barred by the principle of delay and laches nor the contentions of the respondents that the petitioner after attempting the examination cannot approbate and reprobate at the same time can be justified.
28. Sequentially, it is vital to note that the reliance placed by the learned counsel appearing for the respondents upon the dictum encapsulated in Madhya Pradesh Public Service Commission (supra), A.P. Public Service Commission (supra) and Khetan Prakash & Ors. (supra) are of distinguishable factual and legal matrix for the following reasons:
28.1 That in the said judgments, the question of law pertained qua the un-amended provisions of the Rule 19 of the Rules of 1962.
28.2 That the petitioners in the relied upon judgments have flunked and were unqualified whereas in the matter in hand the petitioner had secured good merit and the instant petition is filed assailing the excessive allocation of marks/percentage/weightage to the interview sans considering the provisions of governing statues.
29. This Court at this nascent juncture, upon considering the unendurable circumstance that arose due to the arbitrary action of the respondent-RPSC deems it apposite to place reliance (Downloaded on 13/01/2025 at 09:57:52 PM) (36 of 38) [CW-15018/2024] upon the ratio encapsulated in Asha Vs. Pt. B.D. Sharma University of Health Sciences & Ors. reported in (2012) 7 SCC 389 and it can be articulated Asha (Supra), this Court is of the view that the merit scored by the petitioners should be the exclusive criteria for selection in public examinations, and in no manner due to the technical formalities the fundamental rights of the meritorious petitioner can be frustrated.
CONCLUSION
30. In precise it can be noted that, the impugned advertisement did not specify the method of examination and the bifurcation of marks; that the respondent-RPSC has acted dehors the settled position of law, omitting to follow the judicial guidelines as enunciated in the dictum of Ajay Hasia (supra), Ashok Kumar Yadav (supra) and Praveen Singh (supra); that the respondents have violated the provisions of Rule 19 of the Rules of 1962 and have wrongly interpreted the post-amended provisions of the same; that as the amended in the Rule 19 of the Rules of 1962 was procedural in nature and the same was made in consonance of the opinion formulated by the State Cabinet, the same shall have a retrospective effect; that the respondents in subsequent selection processes that was conducted for intake on the post of Operational Therapists, 2022 and Hospital Caretaker, 2022 vide advertisements dated 12.05.2022 and 23.05.2022 respectively, have applied the retrospective operation of the notification dated 23.05.2022; that the respondents have themselves admitted the fact (in the affidavits) that they have implemented the obsolete conditions of the previous advertisement to the instant advertisement changing (Downloaded on 13/01/2025 at 09:57:52 PM) (37 of 38) [CW-15018/2024] the rules of the game mid-way; that upon a perusal of the records qua the erstwhile three recruitment processes it is observed that the respondent-RPSC has neither followed the directives of the Hon'ble Supreme Court nor have maintained the records in a transparent and reasonable manner, moreover, the experts who were a part of the interviewing board were addressed to as "advisors or assistants"; that this Court while considering the dictum passed in Asha (Supra) is of the view that the sole basis of selection of a candidate in any selection process whether it be any Medical College entrance examination or any public recruitment examination shall only be the merit scored by the candidate. The most efficacious way to examine the intelligence of the candidate is a written examination accompanied by the interview and in any circumstances the written examination cannot be substituted by the interview.
31. Therefore, considering the aforementioned discussion and findings; and acknowledging the crisis which prevail in the medical fraternity this Court directs the respondents to conclude the selection process pursuant to the advertisement dated 27.11.2021 for the post of Assistant Professor in congruence with the notification dated 23.05.2022, the amended Rule 19 of the Rules of 1962 and the ratio spelled out in the judgments of Ajay Hasia (supra) & Ashok Kumar Yadav (supra). The candidature of the petitioner shall be considered conscientiously on the basis of merit scored by her.
32. In light of the aforementioned findings and directions, the instant petition is allowed. No orders as to costs. Stay (Downloaded on 13/01/2025 at 09:57:52 PM) (38 of 38) [CW-15018/2024] application and/or any other pending applications, also stand disposed of.
33. The records that were called from the RPSC, be handed- over to the concerned appropriate authority, following due procedure. Registrar (Judicial) is directed to keep the photo-state copy of the same for the purpose of records with the Court.
(SAMEER JAIN),J Preeti Asopa (Downloaded on 13/01/2025 at 09:57:52 PM) Powered by TCPDF (www.tcpdf.org)