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10. I have heard the learned Counsel for the parties and have perused the relevant record. The contention of the counsel for the petitioner is that personal interview, cannot be a sole determining factor for deciding the relative eligibility of a candidate for selection to a particular post and that the aggregate of the marks scored by a candidate in all the four stages/level should be taken into consideration for determining the eligibility. The learned Counsel for the petitioner asserted that giving 50% weightage to interview marks amounts to giving 100% weightage and that the same is arbitrary and unconstitutional and against the established law laid down by the Supreme Court. Reliance has been placed on decision of the division bench of this Court in CWP No. 127/ 2003, AIIMS v. Dr. A.M.V.R Narendra decided on 11th June, 2004 in support of its contention. The learned Counsel for the petitioner has also relied on (2001)1 SCSLJ 118, Praveen Singh v. State of Punjab; , Inder Prakash Gupta v. State of J&K and Ors.; Lila Dhar v. State of Punjab ; Ashok Kumar Yadav v. State of Haryana and Ors. ; P.K. Ramachandra v. Union of India 1983 (3) SLR 495; Krishan Yadav and Anr. v. State of Haryana (1991)1 SLR 546, Mohinder Sain Garg v. State of Punjab to contend that the allocation of 50% marks for interview is ex facie arbitrary and that the same should be set aside.

23. Another case relied on by the petitioners is Mohinder Sain Garg v. State of Punjab and Ors. (supra) where it was held that the percentage of viva voce test in that case at 25% of the total marks was arbitrary and excessive. It was also held that viva voce test could not be totally dispensed with, but taking note of the situation and conditions prevailing in our country, it would not be reasonable to have the percentage of viva voce marks more than 15 percent of the total marks in the selection of candidates fresh from college/school for public employment by direct recruitment where the rules provided for a composite process of selection namely written examination and interview. A plain reading of the judgment makes it clear that the Court in this case held so on the basis of two factors- (i) that around 1200 candidates were called for interviews against 54 vacancies, and (ii) Selection rules provided for a composite process of selection namely written examination and interview. The case of the petitioners in contradistinction differ on both the factors. In the case of present respondents against 31 vacancies, 139 candidates each of whom had qualified each of the previous stages were interviewed, which is well within the approved norm of calling 5 candidates for 1 vacancy. Also the selection rules clearly laid down that each/event will be elimination round for the subsequent events. In the circumstances it cannot be held that the Supreme Court had held that in no case the weightage of interview cannot be more than 15 per cent. In Inder Prakash Gupta v. State of J&K and Ors. , another case relied on by the petitioners, appointments to the post of lecturers were in question. Appointments to the said post were governed by statutory rules called the Jammu & Kashmir Medical Education (Gazetted) Service Recryitment Rules, 1979. The said rules did not have any provision for a viva voce test, yet the Public Service Commission kept interview as one of the stages of the recruitment process and allotted 100 marks to the interview out of a total of 140 marks and therefore, the Supreme Court had held the selection process to be arbitrary and not merely on the ground that 100 marks out of 140 marks were allotted for interview. But in the case of the petitioners it is not their contention that the recruitment procedure is contrary to the statutory rules laid down for selection.

25. In Krishan Yadav and Anr. v. State of Haryana and Ors. (supra) relied on by the petitioner, the recruitment process was vitiated by fraud. A CBI investigation had revealed acts of favoritism, selections without interview, ghost interviews, tampering with final documents etc. In contradistinction the process of selection has not been impugned by the petitioners on any of these ground. Another judgment relied on by the petitioners, A.I.I.M.S v. Dr. A.M.V.R Narendra, the Division Bench of the this Court was concerned with the issue of admission to an academic course. The case of the petitioners is of appointment to service. The provision for marks for interview test need not and cannot be the same for admission to colleges and entry in to public service. In Kiran Gupta v. State of U.P (supra) the Supreme Court had observed that 'the decisions with regard to reasonableness of percentage of marks allotted for interview in cases of admission to educational institutions will not afford a proper guideline in determining the permissible percentage of marks for interview in cases of selection/appointment to the posts in various services. In Kiran Gupta (supra) one of the issues before the Apex Court was whether, the selection of candidates for the post of Headmaster solely on the basis of interview could be said to be arbitrary. The Supreme Court had observed-"It is difficult to accept the omnibus contention that selection on the basis of viva voce only is arbitrary and illegal and that since allocation of 15% marks for interview was held to be arbitrary by this Court, selection solely based on interview is a fortiori illegal. It will be useful to bear in mind that there is no rule of thumb with regard to allotment of percentage of marks for interview. It depends on several factors and the question of permissible percentage of marks for an interview test has to be decided on the facts of each case." In the AIIMS case (supra) the division bench of this Court held that 100% weightage cannot be given to the interview and that the interview cannot be sole determining factor in the selection process for admission to the course of DM(CH). This was a case where selection process for admission to a course was challenged and therefore the ratio of the same is not applicable to the present case as the present case relates to the procedure for selection to a service. The Division bench in fact had carved out a distinction between selection to a post and selection to an academic course.

9. In Ajay Hasia case1 there was challenge to the validity of admission to the Regional Engineering College, Srinagar. On merits of the case various contentions were raised and it was submitted that marks obtained by the candidates at the qualifying examination were ignored and as many as 50 marks were fixed for viva voce examination as against 100 marks allocated for the written test and relying on viva voce examination as a test for determining comparative merit of the candidate was arbitrary. On the question of allocation of marks for oral interview this Court observed that allocation of as high a percentage as 33 1/3 of the total marks for the oral interview should be regarded as infecting the admission procedure with the vice of arbitrariness and selection of candidates made on the basis of such admission procedure could not be sustained. This Court said 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. The principle laid by this Court in Ajay Hasia case1 is not of universal application in all circumstances and in all cases though the court also touched upon the excessive marks allocated for viva voce in recruitment and promotion in public employment. In Lila Dhar v. State of Rajasthan 3 this Court considered the decision in Ajay Hasia case1 and explained the use of the expression "or even in the matter of public employment" in the context of allocation of marks for oral examination of the candidates seeking employment or promotion. In this case the High Court had struck down the selection for the post of Munsifs on that ground that more than due weightage was given to the interview test in that 25% marks were allocated to viva voce under the Rules and thus holding that the selection was arbitrary and violative of Articles 14 and 16 of the Constitution. This Court said that the words "or even in the matter of public employment" were not intended to lay down any wide, general rule that the same principle that applied in the matter of admission to colleges also applied in the matter of recruitment in the public service and that the observation relating to public employment was per incuriam since the matter did not fall for the consideration of the Court in that case. The Court then went on to observe as under: (SCC p. 167, para 9) "Nor do we think that the Court intended any wide construction of their observation. As already observed by us the weight to be given to the interview-test should depend on the requirement of the service to which recruitment is made, the source-material available for recruitment, the composition of the Interview Board and several like factors. Ordinarily recruitment to public services is regulated by rules made under the proviso to Article 309 of the Constitution and we would be usurping a function which is not ours, if we try to redetermine the appropriate method of selection and the relative weight to be attached to the various tests. If we do that we would be rewriting the rules but we guard ourselves against being understood as saying that we would not interfere even in cases of proven or obvious oblique motive. There is none in the present case.