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1. Heard learned counsel for the parties.

Brief facts of the case are that the Rajasthan Public Service Commission Advertised 19 posts of Legal Assistant. It is stated in the advertisement that number of vacancies can be increased or decreased and for that, no further advertisement will be issued. Ultimately, the number of vacancies was increased to 61. As per the procedure, the written tests were held on 5th and 6th December 1998. The petitioner No. 1 Neeraj Kant and petitioner No. 2 Balvinder Singh secured 81 and 82 marks respectively in the written tests. The petitioners were called for interview for personality test by Viva-voce examinations on 29.4.1999. In the interview both the petitioners secured 6 marks, whereas minimum marks required for declaring to have passed the selection test were 7. According to petitioners, though the petitioners secured much higher marks in written tests than the marks secured by candidates who were selected in written tests but were declared unselected only on the ground of securing merely one mark less than the minimum marks fixed in interview for personality test by Viva-vope examinations. The requirement of minimum marks in Viva-voce is provided in Rule 23 of the Rajasthan Legal (State and Subordinate) Services Rules, 1981. The petitioners have challenged the Rule 23 of the Rules of 1981, therefore, it will be relevant to quote here, which is as under:-

14. Still, the question which has been raised by the learned counsel for the petitioner's survives is, that, whether the nature of service for which selection took place, are of such nature which involves administrative function or the appointee will be required to deal with public and personality of a candidate will have any effect is discharge of duties? The learned counsel for the petitioner pointed out the distinction between the facts of the cases that had already decided by the Supreme Court and the present one. According to the learned counsel for the petitioners, the decisions of the Supreme Court, referred above also made it clear that requirement of interview and fixing of minimum marks for interview depend upon the nature of the duties required to be discharged. The decisions of the Supreme Court, nowhere lay down, prescription of minimum marks in the personality test by Viva-Voce as principle of universal application irrespective of the nature of the job for which selection is to take place. Rather the decisions suggest, that in case where the selected candidates, while working on the post will not have to deal with the public or will not have to discharge administrative functions then the requirement of personality test by interview will become irrelevant.

16. In the light of the law laid down by Hon'ble Apex Court and after careful consideration of the arguments of the learned counsel for the petitioners, it is clear that personality test by Viva-Voce is well-known recognised, permissible method for selection of the candidates for appointment. It is different that, how much weight can be given to the personality test in present process of selection for the post of Legal Assistant? It comes from the facts and the reasons given in the judgments delivered by the Hon'ble Supreme Court that, posts involved in those cases had some element of dealing with public. It is also true that one of the reasons for upholding the validity of prescription of minimum marks for personality test was the nature of the duties involved. After careful reading of all the reasons given in the various judgments of the Supreme Court, I am of the view that importance of personality test was accepted as a new concept in addition to the selection process despite the fact that there is chances of abuse of this process. The Supreme Court upheld the prescription of requirement of personality test as well as the fixing of the minimum marks in interview and held that, selection is an informed professional exercise which is best left to agencies independent of the services to which recruitment is made. So far as the apprehension of abuse of power is concerned, the Hon'ble Apex Court observed that the affairs of the government cannot be conducted on the principles of distrust and if the selectors had acted malafidely or with oblique motive, there are administrative law remedies to secure relief against such abuse of powers. These observations of the Hon'ble Apex Court in the judgment of Mohd. Alab Tariq give complete answer to the apprehension of the petitioners that by adopting the method of viva- voce test, requiring minimum marks in the viva-voce test, will permit the selectors to exclude the meritorious candidates and select the candidate of lesser merit The distribution of marks for written test and for interview may depend upon the duties which are to be discharged by the appointees, but it cannot be concluded that requirement of interview and fixing a minimum marks for interview are undesirable requirement. A careful reading of the judgment of the Supreme Court also reveals that, the nature of post was only one of the grounds which was taken into consideration by the Supreme Court for upholding the validity of the requirement of the prescription of the minimum marks, and not the only ground to uphold validity which is clear from the observations of the Supreme Court : If any minimum marks, either in written test or in viva-voce test are fixed to determine the suitability of a candidate, the same has to be respected, and it was further observed that :- even if a candidate had obtained higher aggregate marks in written and viva-voce test but if he had failed to secure the minimum marks in the viva-voce test, his name could not be included in the list...". The Hon'ble Apex Court nowhere laid down it as rule of universal application that the prescription of the minimum marks for interview is permissible only for those posts where the employees are required to deal with the public or are required to discharge some administrative function or are required to do the work of more responsibility. In fact, in all the judgments. Hon'ble Apex Court recognised the prescription of the minimum marks for interview. While examining, whether the minimum marks fixed for interview are reasonable or not, the nature of the post and the duties attached to the post were considered by the Supreme Court and it has been held that looking to the nature and the duties of the post, the marks fixed in those cases, cannot be said to be excessive. Therefore, there appears to be no force in the contention of the learned counsel for the petitioners, that prescription of minimum marks is permissible only for the above said post and cannot be applied to the posts under consideration in this writ petition. In addition to above, submission of the learned counsel for the petitioners'appears to be based on narrow interpretation to the phrase "dealing with public". "Dealing with the public" by a person holding the public post, understood in common parlance with reference to dealing with general public only and not understood for the government employee's dealings with the other government employee's in their official capacity, for official work. However, close scrutiny will show that what is in common parlance is not the only way of "dealing with public" of a government servant. A government employee is required to attend the office where he is to deal with not only his colleagues but also with his juniors, his officers, sometimes may be up to the highest officer in his own office. There comes very many occasions when the government employee is required to deal with employees of different government departments. A government servant working in office can discharge his duties efficiently only when he can deal with number of other persons working in the office or coming to the office may for official work. Therefore, normally a government employee, when works in the government office, it is to be presumed that he is to deal with public may it be general public or official persons. A Legal Assistant cannot be supposed to work in isolation and it can be said that he need not to deal with public (general public or officials persons). An argument may be advanced that the same principle can be applied in the matter of appointment to the every post of the government service, may it be of clerical nature, whereas, according to the learned counsel for the petitioner, in fact not only there is no requirement of personality test for appointment to the large number of posts in government service but where work of more responsibility is involved and wherever there was similar provision of personality test in the rules, the rules have been amended to remove the requirement of interview. According to the learned counsel for the petitioner, this suggests that the State Government also felt that there is no need of requirement of personal interview for initial selection for the various post. Yes, same principle can be applied in the case of the appointment to many posts but still posts are filled without subjecting the candidate to pass the personality test. It is also true that requirement of personality test is not there in many rules. But when it has been held by the Hon'ble Supreme Court in the judgments referred above that prescription of minimum marks in viva-voce test, if are fixed to determine the suitability of a candidate, the same has to be respected then fixing this minimum marks for the post which have not been referred to in the judgments or the posts where the person holding the post need not to come in contact with public at large or need to discharge the public administrative functions, if applied, then how it can be said to be a condition unreasonable. Putting a condition of higher standard, how it can be said to be a condition unreasonable. Putting a condition of higher standard, how it can be said to be a condition violative to any provision of any law or is violative to touch stone of reasonableness.