Holding

The Supreme Court held that the change of preference was valid, no bias attributable to the commission member’s father was established, and the High Court’s order for a fresh interview was unwarranted, thereby upholding Bansal’s appointment and dismissing Nerwal’s claim.

Summary

The Punjab Public Service Commission conducted a competitive examination for 71 posts in the Punjab Civil Services (Executive Branch) and Allied Services. Candidate V.M. Bansal, whose father was a commission member, changed his preference to the Punjab Civil Service before the result was declared and the change was approved. The commission member recused himself from deliberations during Bansal's viva voce. Unsuccessful candidates and Jaswant Singh Nerwal challenged Bansal's selection, alleging bias and improper change of preference. The Punjab and Haryana High Court quashed Bansal's appointment and ordered a fresh interview, while dismissing Nerwal's claim. The Supreme Court held that the change of preference was valid, there was no material to infer bias from the father's presence, and the High Court's direction for re‑interview was unwarranted; consequently Bansal's appointment stands and Nerwal's appeal is dismissed.

Issues considered

The permissibility of a candidate changing his preference before the declaration of results under the Punjab Civil Services (Executive Branch) Rules, 1930.
Whether the presence of a Public Service Commission member's close relative as a candidate creates a reasonable apprehension of bias warranting the quashing of the selection (Kraipak principle).
Whether the High Court was justified in directing a fresh viva voce interview for the candidate.
Whether the petitioner Jaswant Singh Nerwal is entitled to the Punjab Civil Service post in place of Bansal.

Legislation cited

Constitution of Indias. Article 316
Punjab Civil Services (Executive Branch) Ruless. 1930

Subjects

change of preferencepublic service commissionbiasnatural justicecivil services examinationviva voceappointmentPunjab Civil Services

Judgment

JASW ANT SINGH NERW AL ETC.
A
V.
STATE OF PUNJAB AND ORS. ETC.

FEBRUARY 14, 1991

[MADAN MOHAN PUNCHHI AND K. RAMASWAMY, JJ.] ' B

Punjab Civil Services (Executive Branch) Rules, 1930: Punjab'
Civil Services Examination-Candidate-Change of preference intima- '
ted and approved in time-Held valid-Candidate's father-Member of'
Public Service Commission-Not participating in deliberations at
candidate's viva voce-Selection of candidate-Valid.
c
- For the recruitment of 71 officers in the Punjab Civil Services ,
(Executive Branch) and Allied Services, the Punjab Public Service
Commission, at the behest of the State of Punjab, held a competitive
examination. As per the requirement of the Punjab Civil Services
(Executive Branch) Rules, 1930, the applying candidates specified the D
posts in order of preference in their respective applications. One such
candidate, appellant V.M. Bamal, who bad initially indicated bis first
preference. for the post of Excise & Taxation Officer, intimated to the
Commission, but undisputedly before the declaration of the result, that
he wanted change of his preference so that his first preference was of
Punjab Civil Service (Executive Branch). This change was allowed by ' E
the Commission. Bansal's father, who was a member of the Commis-
sion, did not participate in the deliberations of the Commission when
Bansal was interviewed. Of the 71 candidates declared successful,
Bansal was declared successful for a post in the Punjab Civil Service,
and appellant Jaswant Singh Nerwal for the post of Tehsildar in the
Allied Services. Some of the unsuccessful candidates challenged the f
entire selection on various grounds before the Punjab and Haryana
High Court by means of a writ petition. On the other hand, Nerwal,
through a separate writ petition, challenged the change of preference
allowed by the Com':llission to Bansal which led to Bansal becoming a
Punjab Civil Service Officer and Nerwal a Tehsildar, and claimed that
he be declared successful to a post in the Punjab Civil Service in prefe- G
rence to Bansal. The High Court by a common judgment rejected the
claim of Nerwal and dismissed his writ petition, but allowed the writ
petition preferred by the unsuccessful candidates in part inasmuch as
the selection of Bansal as a Punjab Civil Service Officer and his conse-
quential appointment was quashed. The High Court however did not
disturb the selection of the remaining 70 successful candidates but H

411
412 SUPREME COURT REPORTS [1991] 1 S.C.R.

required Bansal to compete again with the other unsuccessful candi·
A dates as per its direction extracted in the judgment. The High Court in
issuing the aforesaid direction applied the decision of this Court in A. K.
Kraipak & Ors. etc. v. Union of India & Ors., [1970] 1 SCC 457, to
neutralise Bansal's father being a member of the Commission. And
even though Bansal's father had not participated in the deliberations of
B the Commission, when Bansal was interviewed, his brooding presence
was held negatively to have influenced the selection and the possible
ouster of a possibly successful candi~ate. Hence these two appeals by
special leave, one by Bansal and the other by Nerwal, against the judg-
ment of the High Court.

Allowing the appeal of Bansal and dismissing the one filed by
C Nerwal, the Court,

HELD: (1) Besides Bansal's father, there were four other y--
members of the Public Service Commission and who had functioned

0
as a Commission. There was a long list of as many 540 candidates
to be interviewed and the interviews went on from 24.9.1973 uptil
l
30.10.1973. [417G]

(2) Bansal's father did what was expected of him, in having
declined to participate in the deliberations of the Commission when
Bansal went for the viva voce test. [418C]
E
(3) No material has been shown to entertain the douht that
Bansal's father being a member of the Public Service Commission, per
se had the effect of other members keeping track of comparatives in
order to single out Bansal as a successful candidate. There is not a word
of ma/a fide suggested against the other members of the Public Service
F Commission, of having shared the supposed animus of Bansal's father.
There is therefore no reason to sustain the judgment of the High Court -~I
on this aspect of the case. [418A-B]
I
A.K. Kraipak & Ors. etc. v. Union of India & Ors., [1970] 1 SCC
457, distinguished; Javid RO.Soot Bhat & Ors. v. State of Jammu &
G Kashmir & Ors., [1984] 2 SCC 631, affirmed; B.N. Nagarajan & Ors.
v. State of Mysore & Ors., [1966] 2 SCR 682, referred to.

Ashok Kumar Yadav & Ors. etc. v. State of Haryana & Ors. etc.,
[1985] Supp. SCR 65~, relied upon ..

H (4) The manner in which the viva voce test is conducted, no single
JASW ANT SINGH v. ST ATE OF PUNJAB 413

~ member can possibly usurp to himself the total functioning of the
' Commission and jealous as human nature is, no other member can be A
expected to have abdicated his powers to another, at that level, and to
oblige another. These circumstances do not give rise to the likelihood of
Bansal's father espousing the cause of his son to the other four members
of the Commission and monitor the performance of 540 candidates to be
interviewed, the results of written examination of which, he was not B
· alleged to be aware before hand. In these circumstances, it is difficult to
·-4__ uphold the view of the High Court requiring Bansal to be interviewed
again so as to rub against the unsuccessful candidates and to suffer the
consequence. [418C-HJ

In the instant case, the system of division of marks out of the
allocated marks for the viva voce test amongst the actual number of C
members present and participating in the interview, was not however
.,, commended by the Court, nor did the Court approve the provision of
200 marks for the viva voce test because of the percentage now
authoritatively fixed inAshok Kumar Yadav's case. [418F]
D
(5) Bansal has stayed put and working as an Officer in the Punjab
Civil Service and his displacement at the present stage would otherwise
be inequitous serving nobody's purpose due to the time lag. The unsuc-
cessful candidates cannot possibly now, at this stage, due to age and
other supervening factors be fit for the viva voce test, so as to elbow out
Bansal. The obedience of the directions of the High Court at this late E
stage would overly be counter productive and thus not woftb sus-
taining. [419A-B]

(6) Once it is established that the change of preference could be
made and it was intimated and approved timely, the conclusion is ines-
_ ___. capable that Bansal's first preference to a post in the Punjab Civil F
··Service ranked superior to Nerwal's preference, because of their inter-
se ranking in the examination results. Thus the appeal ofNerwal has no
substance and deserves rejection. [419H-420A]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 334 G
of 1978.

From the Judgment and· order dated 14.2.1977 of the Punjab
and Haryana High Court in Civil Writ Petition No. 1860of1975.
WITH
R
Civil Appeal No. 833of1977.
414 SUPREME COURT REPORTS (1991] 1 S.C.R.

From the Judgment and Order dated 14.2.1977 of the Punjab ~
A and Haryana High Court in Civil Writ Petition No. 1172 of 1974.

Anil Dev Singh, P.P. Rao, O.P. Sharma, Janinder Lal, N.S. Das
Bahl, R.C. Gubrela, R.S. Suri, R.S. Sodhi (NP) and M.S. Dhillon
(NP) for the appearing parties.
B
The Judgment of the Court was delivered by

PUNCHHI, J. These two allied appeals arising from a common
judgment of the Punjab and Haryana High Court at Chandigarh, in -f
Civil Writ Petitions Nos. 1172 of 1974 and 1860 of 1975, on grant of -
c special leave, can appropriately be disposed of by a common
.judgment.

In order to recruit 71 officers in the Punjab Civil Services
(Executive Branch) and Allied services, the Punjab Public Service
D Commissfon, at the behest of the State of Punjab, held a competitive
examination in December, 1972. As advertised 12 vacancies were for
the Punjab Civil Services and the remaining for Allied Services. The
applying candidates as per the requirement of the Punjab Civil Service
(Executive Branch) Rules, 1930 (for short the Rules) specified the
'lo... ,J
posts in order of preference in their respective applications. The result ,,,,----
E of those who. were declared qualified was published in the daily
Tribune dated September 21, 1973. Out of the 71 candidates declared
successful Shri V.M. Bansal, the appellant in Civil Appeal No. 833 of
1977 was declared successful for a post in the Punjab Civil Service and
Shri Jaswant Singh Nerwal, the appellant in Civil Appeal No. 334 of
1978 for the post of Tehsildar in the Allied services. Some of the
F unsuccessful candidates challenged this selection in its entirety on ._____
various grounds before the High Court through Civil Writ Petition -
No. 1722 of 1974. On the other hand challenge in Civil Writ Petition
No. 1860 of 1975 was made by Nerwal against Bansal for the latter
having been allowed in the meantime substituted preference for the
posts to the ones given in the first instance in his application, and
G which le9. to his becoming a Punjab Civil .Services Officer and Nerwal
to be a Tehsildar, in the Allied services and had the substitution not
been allowed the position would have been that Nerwal would have )...,
been in the P.C.S. and Bansal an Excise & Taxation Officer. The
challenge thus was to the Commission having allowed substitution of
the preference. The High Court negatived the challenge ofNerwal and
H his claim to be declared successful to a post in the Punjab Civil Service
JASWANT SINGH v. STAIB OF PUNJAB [PUNCHHI, J.] 415

in preference to Bansal and thus dismissed Civil Writ Petition No.
1860 of 1975. Simultaneously Writ Petition No. 1172 of 1974 preferred A
by the unsuccessful candidates was allowed in part inasmuch as the
selection of Bansal as a Punjab Civil Service Officer and his conse-
quential appointment was quashed. The High Court, however, did not
disturb the selection of the remaining 70 successful candidates but
required Bansal to compete again by issuing the following direction: B

"However, he is entitled to compete with the other unsuc-
cessful candidates for securing place in the merit and we,
therefore, direct that Shri V.M. Bansal (respondent no. 8)
along with the other unsuccessful candidates be again in-
terviewed by the members of the Commission except Shri
J.R. Bansal (respondent no. 4) and whosoever is selected c
on merits shall have to be appointed against the post for
which he is selected in accordance with the Rules. We may,
however, observe that if Shri J.R. Bansal (respondent no.
8) is again selected on merits, he will be entitled to his
original seniority and all other benefits of the Service which D
he would have enjoyed had his selection not been quashed.
If in any case, no candidate is selected against the post of
P.C.S. Cadre in accordance with the Rules, any of the
other selected candidates may then make representation to
the Government for being appointed to the post of P.C.S.
in accordance with the Rules." E

Bansal is here before us to have the aforesaid direction quashed
and Nerwal to have the place of Bansal as a Punjab Civil Service
Officer.

We heard learned counsel for the respective parties on every F
aspect of the case at great length. The High Court was goaded to issue
the above direction regulating selection between Bansal and other
unsuccessful candidates, as also the consequence thereof, on applying
the decision of this Court in A.K. Kraipak & Ors. etc. v. Union of
India & Ors., [1970] 1SCC457 to neutralise Bansal's father Shri J.R.
Bansal being a member of the Public service Commission. And even G
though he had not participated in the deliberations of the Commission,
when Bansal had been interviewed, his brooding presence was held
negatively to have influenced the selection and the possible ouster of a
possibly successful candidate'. Kraipak's case was one where one of the
persons, who sat as a member of the selection board, was himself, one
of the persons to be considered for selection. He participated in the H
416 SUPREME COURT REPORTS [ 1991] 1 S.C.R.

deliberations of the selection board when the claims of his rivals were
A considered. He participated in the decisions relating to the preference
in seniority. He participated at every stage in the deliberations of the
selection board where there was conflict between his interest and duty.
In such set of facts this Court unhesitatingly came to the conclusion
that there was a reasonable likelihood of bias and therefore the princi-
B ples of natural justice had got violated. But this Court in Javid Rasool
Bhat & Ors. v. State of Jammu & Kashmir & Ors., (1984] 2 SCC 631
did not vitiate the selection of a candidate to admission in a medical
college on the ground of presence in the selection board of the father
of one of the candidates. In this case, the Principal of Medical College,
Srinagar whose daughter was a candidate for admission to the Medical
College informed the Selection Committee at the very outset about
c this fact and told them that he would not have anything to do with a
written test and would not be present when his daughter would be
interviewed. The other members of the Selection Committee agreed to
the proposal. The procedure adopted by the Selection Committee and
the members concerned was in accord with the generally accepted and
D well known procedure adopted by the Public Service Commissions
every where in the country, as it was not unusual for candidates related
to members of the Service Commission and selection Committees to
seek employment. In such a situation the practice generally in vogue is
for the member concerned to excuse himself when the particular
candiate is interviewed and such a selection is beyond challenge,
E unless, of course, mala fide. See this Court's decision in S.N. Nagara-
;an & Ors. v. State of Mysore & Ors., [1966) 3 SCR 682, also.

Then we have the momentous decision of this Court in Ashok
Kumar Yadav and Ors. etc. etc. v. State of llaryana & Ors. etc. etc.,
[1985) (Supp.) SCR 657 which without whittling down the salutary
F principle evolved in Kraipak's case (supra) has put the Public Service _
Commissions, being creatures of the Constitution, at a higher pedes-
tal. At pages 686-87, it was ruled as follows:

"But the situation here is a little different because the
selection of candidates to the Haryana Civil Service
G (Executive) and allied services is being made not by any
Selection Committee constituted for that purpose but it is
being done by the Haryana Public Service Commission
which is a Commission set up under Article 316 of the
Constitution. It is a Commission which consists of a
Chairman and a specified number of members and is a
H Constitutional Authority. We do not think that the princi-
JASWANT SINGH v. STATE OF PUNJAB [PUNCHHI, J.] 417

pie which requires that a member of a selection committee
A
whose close relative is appearing for selection should
decline to become a member of the selection committee or
withdraw from it leaving it to the appointing authority to
nominate another person in his place, need be applied in
case of a Constitutional Authority like the Public Service
Commission, whether Central or State. If a member of a 8
Public Service Commission were to withdraw altogether
from the selection process on the ground that a close rela-
tive of his is appearing for selection, no other person save a
member can be substituted in his place. And it may some-
times happen that no other member is available to take the

- ·+-· place of such member and the functioning of the Public
Service Commission may be affected. When two or more
members of a Public Service Commission are holding a
viva voce examination they are functioning not as indivi-
c

duals but as the Public Service Commission. Of course, we
must make it clear that when a close relative of a member
of a Public Service Commission is appearing for interview, D
such member must withdraw from participation in the
interview of that candidate and must not take part in any
discussion ·in regard to the merits of that candidate and even
the marks or credits given to that candidate should not be
disclosed to him."
E
It was the admitted case before the High Court that Bansal's

-
father did participate in the deliberations of the Commission when the
viva voce test of other candidates appearing before the Commission
had been taken and he had accordingly awarded marks to the candi-
dates otherwise competing with his own son. The High Court has still
deduced that inspite of the afore-suggested bias the candidates who F
___.\ got selected against the posts (except his son) got their due un-biased
~ - and therefore their selection cannot be questioned. Taking this deduc-
tion to be correct, the High Court before issuing the direction under
challenge, had further to find that there was bias in excluding the
unsuccessful candidates. We do not find this to have engaged the
attention of the High Court. It is noticeable that besides Bansal's G
father there were four other members of the Public Service Commis-
sion and who had functioned as a Commission. As is evident there was a
long list of as many 540 candidates to be interviewed and the inter-
views went on from 24-9-1973 uptill 30-10-1973. In the nature of
things, there was no material before the High Court, and none has
been pointed to us, from which it could be concluded that the members H
418 SUPREME COURT REPORTS [ 1991] 1 S.C.R.

of the commission could keep track of the comparatives of each of
A those 540 candidates. so as to manipulate a favourable result to Bansal.
We have not been shown any material to entertain the doubt that
Bansal's father bei~g a member of the Public Service Commission,
per-se had the effect of other members keeping track of comparatives
in order to single out Bansal's as a successful candidate. And lastly
B there is not a word of mala fide suggested against the other members of
the Public Service Commission, of having shared the supposed animus
of Bansal's father. Thus, in the fac.ts and circumstances of this case, we
do not find any reason to sustain the judgment of the High Court on
this aspect of the case. Bansal's father did what was expected of him,
in having declined to participate in the deliberations of the commission
when Bansal went for the viva voce test.
c
Our view in this regard is further strengthened by the manner in
which the viva VOCI? test is conducted and which the High Court even
has not disapproved. It appears that out of a total of 825 marks, 625
marks have been allotted for written tests and the remaining 200 marks
D are for viva voce test. These viva-voce marks are distributed in various
heads as enumerated by the High Court. What is significant is that
each member individually gets 25 marks but on actual working, if one
of them is not attending, the share of marks are divided in the present
members. Further these marks are strictly not divided as 25 marks for
each member but each member allots marks to each candidate out of
E 125 marks and these when added are divided by 5 or by the actual
number of members present and participating in the interview. We
may not be taken to be commending such a system of division of marks
out of the allocated marks for the viva voce test but it seems this is the
practice in which they are actually worked out. Similarly the provision
of 200 marks for viva voce test cannot meet our approval because of
F the percentage now authoritatively fixed in Ashok Kumar Yadav's case
(supra). On these particulars and for these reasons no single member
can possibly usurp to himself the total functioning of the commission
and jealous as human nature is, no other member can be expe<:.:ted to
have abdicated his powers to another, at that level, and to oblige
another. These circumstances do not give rise to the likelihood of
G Bansal's father espousing the cause of his son to the other four members
of the commission and monitor the performance of 540 candidates to
be interviewed, the results of written examination of which, he was not
alleged to be aware beforehand. In these circumstances, we find it
difficult to uphold the view of the High Court requiring Bansal to be
interviewed again so as to rub against the unsuccessful candidates and
H to suffer the consequence.
JASWANT SINGH v. STATE OF PUNJAB. [PUNCHHI. J.] 419

On the grant of special leave to Bansal, operation of .the judg- A
~ ment and order of the High Court appealed against, was on 27th July,
1977, stayed. Bansal has stayed put and working as an Officer in the
Punjab Civil Service and his displacement at the present stage would
otherwise be inequitous serving nobody's purpose due to the time lag.
The unsuccessful candidates cannot possibly now, at this stage, due to B
age and other supervening factors, be fit for the viva voce test, so as to
elbow out Bansal. The obedience of the directions of the High Court at
--...(_ this late stage would overly be counter productive and thus not worth
sustaining. ·

This brings us to the claim of Nerwal for displacement of Bansal
_ ,,_ from the post in the Punjab Civil Service in substitution to that held by C
him as a Tehsildar. The facts as found by the High Court are that
initially Shri V.M.Bansal's first preference was for the post of Excise
& Taxation Officer, but on December 4, 1973, he had intimated to the
~Commission that he required change of his preference so that his first
preference was of Punjab Civil Service (Executive Branch). The inti- D
mation was received in the office of the commission on De~ember 4,
1974 itself and the Chairman of the commission on the same date
allowed the change. That such change was permissible before the
declaration of the result is beyond dispute. What was urged before the
High Court was that since Bansal's application did not form part of all
,...,,J,. like applications sent in a b,undle by the commission to the state E
- Government on 11th December, 1973 and had rather been sent sepa-
rately later on December 20, 1973, that by itself raised a doubt as to
the authenticity thereof. The High Court negatived the contention. It
held that this circumstance alone did not conclusive~y prove that the
change of preference was intimated to the commission after the decla-
ration of the result on December 7, 1973 as alleged. Though the High F
~ Court went on to observe that there was no statutory rule that no
""r.--change in preference could be made after the result is communicated
by the commission to the State Government, we are not obliged to go
into that question. "In face of the finding of the High Court that circurn·
stantially it was established on the record that the preference had been
changed by Bansal on 4-12-73, before the declaration of the result, it is G
difficult to take a contrary view. The High Court had even seen the
original record to come to that view. Such like inferences drawn are in
- ~ the realm of facts and we have not been persuaded to take a different
view. Once this is established that the change of preference could be
made and it was intimated and appproved timely, the conclusion is
inescapable that Bansal's first preference to a post in the Punjab Civil H
420 SUPREME COURT REPORTS [ 1991] 1 S.C.R.
A
service r~nked superior to Nerwal's preference, because of their inter- _,J,
se ranking in the examination results. Thus,the appeal of Jaswant ~""\
Singh Nerwal has no substance deserving rejection.

Resultantly for the views afore-expressed, Civil Appeal No. 833
B of 1977 preferred by Shri V.M. Bansal is allowed and the Civil Writ
Petition No. 1172 of 1974 before the High Court would stand dismissed
and Civil Appeal No. 334 of 1978 of Shri Jaswant Singh Nerwal would
stand dismissed affirming the dismissal of his Writ Petition No. 1860 of >--
1975 before the High Court, but without any order as to costs in both
appeals.

D.R.L. C.A. No. 334/78 dismissed
C.A. No. 833/77 allowed. -