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(e) Respondents 4 to 54 who had been promoted by means of an arbitrary and illegal procedure could not plead equities particularly since their promotions were subject to the result of these petitions.

12. Mr. Sandeep Sethi, learned Senior counsel appearing for the AIL first submitted that the writ petitions were barred by laches. W.P. (C) No. 11247-50 of 2006 was filed on 15th July 2006 and W.P. (C) No. 733 of 2007 was filed on 24th January 2007 whereas the written test pursuant to the Staff Notice dated 2nd May 2003 was held on 29th June 2003 and the seniority list was published on 25th July 2005. Secondly, the filling up the posts of Assistant Manager (Security) was not a purely promotional exercise but a "promotion by selection." The mention of reservation in the Staff Notices was by inadvertence and no benefit of such reservation was in fact given to a selected OBC candidate. Thirdly, it was submitted that since in the first place no qualifying mark for the written test was indicated in the Staff Notices dated 26th July 2002 and 2nd May 2003, it was decided by the management to call all the candidates who appeared in the written test for the group discussion and interview. There was nothing illegal in introducing a qualifying mark subsequently; since the vacancies were limited some method of filtering had to be introduced. Fourthly, the Petitioners had no vested right to promotion but only a right to be considered for promotion if they qualified in the selection. The Petitioners having participated in the written test, group discussion and interview, were estopped from challenging the legality of the procedure subsequently. It was denied that the allocation of 70% marks for group discussion and interview was arbitrary, unreasonable or violative of Article 14 of the Constitution.

35. The selection for 61 posts in Haryana Civil Service (Executive) and Allied Services was challenged in Ashok Kumar Yadav v. State of Haryana (1985) 4 SCC

417. 200 out of a total of 900 marks for general candidates, and out of a total of 600 marks for ex-servicemen, were allocated for viva voce. This was challenged as being excessive, introducing an irredeemable element of arbitrariness in the selection process so as to offend Articles 14 and 16 of the Constitution. Justice Bhagwati (as he then was) speaking for a four Judge Bench observed as under: (SCC @ 452-453) "the viva voce test tended to become a determining factor in the selection process, because even if a candidate secured the highest marks in the written examination, he could be easily knocked out of the race by awarding him the lowest marks in the viva voce test and correspondingly, a candidate who obtained a the lowest marks in the written examination could be raised to the top most position in the merit list by an inordinately high marking in the viva voce test. It is therefore obvious that the allocation of such a high percentage of marks as 33.3 per cent opens the door wide for arbitrariness, and in order to diminish, if not eliminate the risk of arbitrariness, this percentage need to be reduced. But while considering what percentage of marks may legitimately be allocated for the viva voce test without incurring the reproach of arbitrariness it must be remembered that ex-service officers would ordinarily be middle aged persons of mature personality and it would be hard on them at that age to go through a long written examination involving 8 subjects and hence it would not be unfair to require them to go through a shorter written examination in only 5 subjects and submit to a viva voce test carrying a higher percentage of marks than that might be prescribed in case of younger candidates. The personalities of these ex-service officers being fully mature and developed, it would not be difficult to arrive at a fair assessment of their merits on the basis of searching and incisive viva voce test and therefore in their case, the viva voce test may be accorded relatively greater weight. But in any event the marks allocated for the viva voce test cannot be as high as 33.3 per cent.

37. The selection of Excise and Taxation Inspectors was challenged in Mohinder Sain Garg v. State of Punjab (1991) 1 SCC 662 on, inter alia, the ground that 25% marks for interview gave excessive and arbitrary powers to the Selection Committee. Following the decision in Ashok Kumar Yadav, the Supreme Court held as under:

(SCC @ 683) "we deem it proper to lay down after taking in view the dictum of all the authorities decided so far that the percentage of viva voce test in the present cases at 25% of the total marks is arbitrary and excessive. There could be no gain saying that viva voce test cannot 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 per cent 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."

38. The Court reached the same conclusion in Vikram Singh v. Subordinate Services Selection Board (1991) 1 SCC 686 where it struck down 28.5 per cent marks for viva voce and held a maximum of 12.2% to be the permissible limit for viva voce marks. Mohinder Sain Garg has in turn been followed in Munindra Kumar v. Rajiv Goel (1991) 3 SCC 368 where three unsuccessful candidates challenged the selection procedure for Assistant Engineers for the UP State Electricity Board after its completion alleging arbitrariness in grant of marks in group discussion and interview coupled with the fact that 80 out of 200 marks were allocated for the group discussion and interview. The Supreme Court, dealing with the question as to what percentage of marks was reasonable to be allocated for group discussion and interview in a selection process, held that 15 per cent marks can be kept for interview. However, if there was a provision for group discussion also, then marks for interview and group discussion should not exceed 10 and 5 per cent, respectively.