Holding

The prescription of a minimum qualifying mark of 33% in the viva‑voce examination does not incur any constitutional infirmity and is therefore valid.

Summary

The Rajasthan Public Service Commission, in its 1985 recruitment for the Administrative, Police and Forest Services, required candidates to obtain at least 33% marks in the viva‑voce (interview) as a condition for selection. Several candidates who failed to meet this cut‑off challenged the provision as unconstitutional, and the Rajasthan High Court struck it down as arbitrary. The State of Rajasthan, the Public Service Commission and the successful candidates appealed to the Supreme Court, arguing that the rule was a reasonable means of assessing personality traits essential for the services and did not violate equality principles. The Court examined earlier decisions (Ajay Hasia, Lila Dhar, Ashok Kumar Yadav) and held that prescribing a minimum qualifying mark for the viva‑voce does not, by itself, render the rule unconstitutional, emphasizing that the test is a recognised aid to selection and not a determinative factor. Consequently, the Supreme Court set aside the High Court judgment, upheld the recruitment rule, and dismissed the writ petitions.

Issues considered

The constitutionality of prescribing a minimum qualifying mark of 33% in the viva‑voce for selection to the Rajasthan Administrative, Police and Forest Services
Whether such a provision violates Article 14 of the Constitution by being arbitrary or unreasonable
Whether the principles laid down in Ajay Hasia, Lila Dhar and Ashok Kumar Yadav apply to the present provision

Legislation cited

Constitution of Indias. Article 14, s. Article 309

Subjects

recruitment ruleviva voceminimum qualifying marksconstitutional validityequality clausepublic service commissionselection testarbitrariness

Judgment

MEHMOOD ALAM TARIQ AND ORS. ETC.
A
v.
STATE OF RAJASTHAN & ORS. ETC.
MAY 11, 1988
[RANGANATH MISRA AND M.N. VENKATACHALIAH, JJ.]
B
Rajasthan State· and Subordinate Service (Direct Recruitment by
combined Competition Examination) Rules 1962/Rajasthan Police
Service Rules 1954/Rajasthan Forest Services Rules 1962/Rajas than
Forest Subordinate Service Rules, 1963: Rule 15(1) Proviso/Rule 25-
Proviso (i)-Recruitment rule prescribing minimum qualifying marks in
the viva voce test~uch rule whether incurs constitutional infirmity.
Statutory Interpretation: Validity of Statutory provision-To be c
tested with reference to its operation and efficacy in generality of cases-
Not by freaks or exceptions that its applications might in some rare cases
possibly produce.
The Rajasthan Public Service Commission conducted an examina-
tion in 1985 for appointments to State Services. The recruitment rules D
contained a provision that candidates should secure a minimum of 33%
marks in the viva-voce test. !>ome of the candidates who failed to secure
the minimum marks in viva-voce challenged before the High Court the
constitutionality of the provision in the Rules stipulating such minimum
cut-off marks. The High Court declared the provision unconstitutional.
E
Before this Court, it was urged on behalf of the selected candidates
and the State of Rajasthan, that (1) the High Court fell into a serious
error in importing into the present case principles .... which pertained
to the proposition whether the setting apart of an excessive and dispro-
portionately high percentage of marks for viva-voce in comparison with
the marks of the written-examination would be arbitrary; and (2) the F
prescription of minimum qualifying marks for the viva-voce test would
not violate any constitutional principle or limitation, but was on the
contrary a salutary and desirable provision.
On the other hand, it was urged that (1) the principles laid down by
this Court, which the High Court had accepted; were sound 'and had
acquired an added dimension in the context of the increasingly denuded G
standards of probity and rectitude in the discharge of publice office•, and
(2) the real thrust of the principles was that any marking-procedure that
made the oral test determinative of the fate of a candidate was, in itself,
arbitrary, and if this test was applied to this case, the decision reached by
the High Court would be unexceptionable.
H
379
380 SUPREME COURT REPORTS 11988] Supp. 1 S.C.R.

Allowing the appeals, it was,
A
HELD:(l) A sensitive, devoted and professionally competent
administrative set-up could alone undertake the ever-expanding social
and economic roles of a welfare state.1387 A-BJ
(2) The 'interview' was now an accepted aid to selection and was
B designed to give the selectors some evidence of the personality and
character of the candidates, which qualities were necessary and useful to
public-servants. l388G-HJ
(3) Academic excellence was one thing. Ability to deal with the
public with tact and imagination was another. Both were necessary for an
officer. The dose that was demanded may vary according to the nature
C of the service. Administrative and Police Services constituted the cutting
edge of the administrative machinery and the requirement of higher
traits of personality was not an unreasonable expectation. [39lD1
Lila Dfiar v. State of Rajasthan, 11982] 1 SCR 320 referred to.
(4) The observations made by this Court in Ashok Kumar Yadav
D were in the context where the spread of marks for the viva-voce was so·
enormous, compared with the spread of marks for the written examina-
tion, that the viva-voce test •tended to become the determining factor'.
The reference was to the possibility of a candidate undeservedly being
allotted high marks at the interview. That was a very different thing from
the question whether a candidate should acquire at least a certain
E minimum percentage of marks at the viva-voce. l394B-C]
Ashok Kumar Yadav v. State of Haryana, 11985] Supp. 1SCR657
explained.
State of U. P. v.' Rafiquddin & Ors., (Judgment Today (1987) 4 SC
257 referred to.
F
(5) The prescription of minimum qualifying marks of 60 (33%) out
of the maximum of 180 set apart for the viva-voce examination did not,
by itself, incur any constitutional infirmity. The principles laid down by
this Court in the case of Ajay Hasia Lila Dhar and Ashol< Kumar Yadav
did not militate. against or render impermissible such a prescription. [391B I
G Ajay Hasia v. Khalid Mujib Sehravardi & Ors., 11981] 2 SCR 79;
Lila Dhar v. State of Rajasthan & Ors., and Ashok Kumar Yadav v.
State of Haryana, distinguished.
(6) A mere possibility of abuse of a provision, did not, by itself,
justify its invalidation. The validity of a provision must be tested with
H reference to its operation and efficiency in the generality of cases and not
M.A. TARIQ v. STATE OF RAJASTHAN [VENKATACHALIAH, J.} 381

by the freaks or exceptions that its application might in some rare cases
A
possibly produce. [394F-G I
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 741 of
1987.
From the Judgment and Order dated 6.2.1987 of the Rajasthan
High Court in D.B. Civil Writ Petition No. 1632, 1758, 1826, 340, 1723, B
344, 342, 343, 1755, 1756, 1757, 1982 of 1986, 170/87 and S.A. No. 341
of 1986
V.M. Tarkunde, Mrs. M. Karanjawala and Ezaz Maqbool for the
Appellant in C.A. No. 741/87
Dushyant Dava, Ezaz Maq boo!, Mrs. Manik Karan jaw ala for
the Petitioners in W.P. No. 286/87.
c
C.M. Lodha, P.P. Rao, Badri Das Sharma,. Raj Kumar Gupta
and P .C. Kapur for the Rcspopdents.
P.K. Jainforthe Intervener in W.P. No. 286/1987.
D
The Judgment of the Court wasdelivered by
VENKAT ACHALIAH, J. These appeals by Special Leave, arise
out of the judgment, dated, February 6, 1987 of the Division Bench of
High Court of Rajasthan, disposing of by a common judgment a batch
of writ-appeals and writ petitions, in which was involved the question of
the validity of certain provisions of the Recruitment Rules made and E
promulgated under the proviso to Article 309 of the Constitution by
which, in respect of the scheme of competitive examinations to be con-
ducted by the Public Service Commission for recruitment to certain
branches of the civil services under the state, certain minimum qualify-
ing marks in the viva-voce test were prescribed.
The Division Bench, i.y its judgment under appeal, declared as F
arbitrary and unconstitutional this prescription in. the rules which re-
quired that the candidates for selection to Administrative Service, the
Police Service, and the Forest Service of the State should secure a
minimum of 33% of the marks prescribed for the viva-voce examina-
tion. In these appeals the correctness of the. High Court's view is
questioned by the State of Rajasthan, its Public Service Commission G
and the successful candidates whose selections were, in consequence of
invalidation of the rule, quashed by the High Court.
The Writ-Petition No. 286 of 1987 before us, is by another batch
of candidates selected by the Public Service Commission for issue of a
writ of mandamus, directing the State to effectuate the selection and H
382 SUPREME COURT REPORTS [1988] Supp. 1 S.C.R.

issue orders of appointment. By an inter-locutory order, dated
A
13.3.1987 the operation of the judgment under appeal was stayed by
this court. The result of this stay is that there was no impediment to
effectuate the Select-List dated 17.7.1986.
2. The Rajasthan State and Subordinate Services (Direct
Recruitment by Combined Competitive Examinations) Rules 1962,
B
('1962 Rules for Short'); the Rajasthan Administrative Service Rules
1954, the Rajasthan Police Service Rules 1954, the Rajasthan Forest
Service Rules 1962 contain a provision, special to the said three
services, and not applicable to other services, that candidates, other
than those belonging to Scheduled Castes and Scheduled Tribes,
should secure a minimum of 33% of marks in the viva-voce test. It is
c this Rule which is the centre of controversy. The Rules also stipulate
that candidates for these three services must also secure 50% in the
written examinations; but that is not in the area of controversy.
Proviso ( 1) to Rule 15 of the '1962 rules' which is the relevant
Rule brings out the point. It provides:
D
"15. Recommendations of the Commission-(1) The
Commission shall prepare for each Service, a list of the
candidates arranged in order of merit of the candidates as
disclosed by the aggregate marks finally awarded to each
candidate. If two or more of such candidates obtain equal
marks in the aggregate, the Comission shall arrange their
-
E
names in the order of merit on the basis of their general
suitability for the service:

Provided that:
(i) the Commission shall not recommend any candi-
F date for the R.A.S./R.P.S. who has failed to obtain a
minimum of 33% marks in the personality and viva-
voce examination and a minimum of 50% marks in
the aggregate. It shall also not recommend any candi-
date for other services who has failed to obtain a
minimum of 45% marks in the aggregate.
G
(ii)

(2) Notwithstanding anything contained in proviso
(i), the Commission shall in case of candidates belong-
ing to the Scheduled Castes or Scheduled Tribes re-
H commend the names of such candidates, upto the

'
'
M.A. TARIQ v. STATE OF RAJASTHAN [VENKATACHALIAH, J.] 383

number of vacancies reserved for them for amongst.
those who have qualified for interview, even if they A
fail to obtain the minimum marks in viva voce or the
aggregate prescribed under proviso (i) above."
(emphasis supplied)

Similar is the purport of Proviso (i) to Rule 25 of the Rajasthan B
Administrative Service Rules 1954; the Rajasthan Police Service Rules
1954; the Rajasthan Forest Service Rules 1962 and the Rajasthan
Forest Subordinate Service Rules 1963. The Rajasthan Public Service
Commission conducts the competitive examination for selection for
appointment to these and several other services under the State. The
maximum marks for the written-examination is 14-00 and for the viva-
voce and personality test is 180, which constitutes 11.9% of the aggre- c
g~te marks. Rules in relation to the Administrative Police and Forest
Services require that candidates should secure 33% as minimum quali-
fying marks in the viva-voce. The High Court has struck down these
provisions stipulating the minimum cut-off marks at the viva-voce.
D
3. In the year 1985 the Rajasthan Public Service Commission
initiated proceedings for selection to 16 services including the said
three services. The written examinations were conducted in OctobeP,
1985 the results of which were published in April, 1986. The viva-voce
examinations and personality test were conducted between June 11 &
July 11, 1986. The final Select-List was published on 17.7.1986. The E
five appellants in CA 741 of 1987 secured, respectively, 19th 23rd,
20th, 12th and 11th places. The 5 petitioners in WP 286 of 1987 secured
10th, 13th, 14th, 17th and 18th places respectively in the Select-List.

Some of the candidates who failed to secure ·the requisite
minimum of 60 marks out of the 180 marks prescribed for the vava- F
voce and could . not, therefore, make the grade in the said three
services challenged before the High Court. The Select-List on the
ground of the unconstitutionality of the provision in the Rules stipulat-
ing such minimum cut-off marks. They filed Writ-Petitions 1632 of
1986, 1723 of 1986, 1826 of 1986, 1842 of 1986, 1982 of 1986 and 170
of 1987 in the High Court. The petitions were referred to ·and G
came before a Division Bench and were heard along with the special
Appeals 340 to 344 of 1986 which had been preferred against an earlier
decision on the same question by a single judge of the High Court.

4. We have heard Sri C.M. Lodha, Sri Tarkunde, and Sri Shanti
Bhushan, learned Senior Advocates respectively, for the State of H
384 SUPREME COURT REPORTS [1988] Supp. 1 S.C.R.

Rajasthan, the Public Service Commission and the selected-candi-
A
dates; and Shri P.P. Rao Learned Senior Advocate for the unsuccess-
ful candidates at whose instance the Select-List was quashed by the
High Court. •
'
It was contended for the appi:llants that the High Court, in
B reaching such conclusions as it did on the constittitionality of Proviso
(i) to Rule 15 of the "1962 rules" and of the corresponding Provisions
in the Rules pertaining to the other services wholly misconceived the
thrust and emphasis of the pronouncements of this court in Ajay Hasia
v. Khalid Mujib Sehravardi & Ors. etc., [1981] 2 SCR 79; Lila Dharv.
State of Rajasthan & Ors., [1982] 1SCR320 and Ashok Kumar Yadav
v. State of Haryana and Ors. etc., [1985] Suppl. 1 SCR 657. It was
c urged that the High Court fell into a serious error in importing into the
present case, principles laid down in a wholly different context and
that in the said three decisions the question whether a minimum quali-
fiying marks could be prescribed for a viva-voce examination or not /id
not fall for consideration much less decided, by this court. What was
D considered in those cases, counsel say, pertained to the proposition
whether the setting apart of an excessive and disproportionately high
percentage of m~rks for the viva-voce in comparison with ·the marks of
the written-examination would be arbitrary. Learned Counsel further
submitted that reliance by the High Court on the Report of the Kothari
Commission on the basis of which the prescription of minimum quali-
E fying marks for the viva-voce was done away with in the Competitive
Examinations for the Indian Administrative Service, Police Service
and other central-services was erroneous as that report was merely
an indication of a policy-trend. It was submitted that even the Kothari
Commission had itself advised further evaluation of the matter. It was
further submitted for the appellants that the prescription of minimum
F qualifying-marks for the written-examination or the viva-voce or for
both, is a well recognised aspect of recruitment procedures and that a
prescription of a maximum of 11.9% of the total marks for the viva-
voce examination, with a condition that the candidate must get at
least, 33% out of these marks for selection to the three key-services
would not violate any constitutional principle or limitation; but on the
G contrary would, indeed, be a salutary and desirable prescription,
particularly having regard to the nature of the services to which re-
cruitment is envisaged. It was submitted that personnel recruited to
the high echelons of Administrative, Police and Forest services with
the prospect, with the passage of time, of having to assume higher '
responsibilities of administration in these three vital departments of
H Government, should be tried men with dynamism and special attain-
M.A. TARIQ v. STATE OF RAJASTIIAN IVENKATACHALIAH, J.] 385

men ts of personality. It was pointed out that though the pay-scale of A
the Accounts Service and Insurance Service are the same as that of the
Administrative Service, such a prescription is not attracted to the
selection to these other services.

5. Shri P.P. Rao, learned Senior Advocate, appearing for the
candidates who had failed to secure the minimum at the viva-voce and B
whose challenge to the selection had been accepted by the High Court,
submitted that the principles which the High Court had accepted were
sound and that the decision under appeal would require to be upheld.
Sri Rao submitted that the principles enunciated in the Ajay Hasia,
Lila Dhar and Ashok Kumar Yadav acquire an added dimension in the
context of the increasingly denuded standards of probity and rectitude
. in the discharge of public offices-and that attempts to vest a wide
c
discretion in the selectors should not be too readily approved. Accord-
ing to Sri Rao, the real thrust of the principle laid down in these cases
is that any marking-procedure that mak~ the oral test determinative of
the fate of a candidate is, in itself, arbitrary. Shri Rao relied upon the
following passage in Ashok Kamar Yadav's case [1985] Suppl. 1 SCR D
657 at 697-98):

" The spread of marks in the viva-voce test being
enormously large compared to the spread of marks in the .
• written examination, the viva-voce test tended to become a
determining factor in the selection process, because even if a E
candidate secured the highest marks in the written exami-
nation, 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 the lowest
marks in the written examination could be raised to the top
most position in the merit list by an inordinately high mark- F
ing 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, .. "
(emphasis supplied) G

Shri Rao submitted that the correct test, flowing from the earlier
decisions, is to ask whether the viva-voce tended to become the de-
terrning factor in the selection process. If so, it would be bad. If this
test is applied to the present case Sri Rao says, the requirement of
minimum, cut-off marks in ihe viva-voce makes that viva-voce a "de- ff
386 SUPREME COURT REPORTS 1 [1988) Supp. 1 S.C.R.

A termining factor" in the selection-process and falls within the dictum
of the earlier cases and the decision reached by the High Court accord-
ingly is unexceptionable. Sri Rao, sought to demonstrate how the Rule
operated in practice and as to how candidates at the top of the results
in written-examination had failed even to secure the minimum in the
viva-voce, particularly in the Interview Board presided over by acer-
B tain Sri Khan. He showed with reference to several instances how the
performance in the written-examination and the viva-voce bear almost
an inverse proportion.

The High Court accepted those grounds urged in invalidation of
the impugned rule and held:
c " ... The question before us is slightly different and relates
to the essential requirement of obtaining the prescribed
rhinimum qualifying one third marks out of those allotted
for the viva-voce test, since the percentage of marks allot-
ted for the viva-voce test as compared to the written test is
D within the permissible limit. The test of arbitrariness even
in such a case is however, indicated by the ratio decidendi
of Ashok Kumar Yadav case (supra).

It was clearly held by the Supreme Court in Ashok
Kumar Yadav's case (supra) that any method which makes
E the viva-voce test a determining factor in the selection pro-
cess resulting in a candidate securing high marks in the
written examination being easily knocked out in the race by
awarding him low marks in the viva-voce test and vice versa
is arbitrary and is liable to be struck down on that
ground ... "
F '
6. We may now examine the merits of the rival contentions. The
modem state has moved far away from its concept as the 'Leviathan'
with its traditional role symbolised by the two swords it wielded-one
of war and the other of justice. The modem, pluralist, social-welfare
state with its ever-expanding social and economic roles as wide-ranging
G as that of an Economic-Regulator, Industrial Producer and Manager,
Arbitrator, Educationist, Provider of Health and Social-Welfare
services etc., has become a colossal service-corporation. The bureauc-
racy, through which the executive organ of the state gives itself expres-
sion, cannot escape both the excitement and the responsibility of this
immense social commitment of the Welfare-State. Today the bureauc-
H racy in this country carries with it, in a measure never before dreamt
M.A. TARIQ v. STATE OF RAJASTIIAN· IVENKATACHALIAH, J.] 387

of, the privilege and the burden of participation in a great social and
A
economic transformation, in tune with the ethos and promise of the
constitution for the emergence of a new egalitarian and eclectic social
and economic order-a national commitment which a sensitive,
devoted and professionally competent administrative set-up alone can
undertake. A cadre comprised of men inducted through patronage,
nepotism and corruption cannot, morally, be higher than the methods B
that produced it and be free from the sins of its own origin. Wrong
methods have never produced right results.

What, therefore, should impart an added dimension and urgency
to the Recruitment to the. services is the awareness of the extraordi-
nary vitality and durability of wrong selections. With the constitutional
guarantee of security, the machinery for removal of a Govemment- c
Servant on grounds of in-efficiency aqd lack of devotion remains
mostiy unused. The authors of a work on "Britain's Ruling Class"***
say:

"ONE OF THE MAIN ATIRACTJONS of working for D
the Civil Service is job security. Once they let you in, you
have to do something spectacularly improper to get kicked
out. In 1978 out of 5,67,()(){j non-industrial civil servants,
just 55 were sacked for disciplinary reasons; 57 were re-
tired early 'on grounds of inefficiency or limited efficiency';
123 were retired early on grounds of redundancy'. In . E
practice, a modest dose of common ·sense and propriety
allows you to stay a civil servant until you retire. In the
middle and senior administration grades many do just that.
82 per cent of permanent Secretaries have been in the Civil
Service for 25 years or more; so have 79 per cent of Deputy
Secretaries, 62 per cent of Under Secretaries and 70 per cent F .
of Senior Executive Officers."

" . . . Recruiting civil servants means picking as many
potential high flyers as possible-and at the same time as
few potential albatrosses. It is a task carried out by the
Civil Service Commission-with scrupulous honesty, but G
questionable efficiency."

· The history of the evolution of the civil services in some
,. countries is in itself study in contrasts as fascinating as it is disquieting.
•••The Civil Servants; An Inquiry into Britain's Ruling Class: Peter Kellnor and Lord
Crowther-Hunt at page 103. H
388 SUPREME COURT REPORTS [1988] Supp. 1 S.C.R.

A In France, until the Revolution, almost every office, central or local,
excepting the dozen or so of the highest offices were attainable only by
private purchase, gift or inheritance. All Public Officer were treated as
a species of private property and voluminous jurisprudence governed
their transmission. Of this spectacle, a learned authority on Public
Administration says:
B
"Prices rose, but there was a frantic buying. Ministers
made the most of their financial discovery. As it soon be-
came too difficult to invent new offices, the old ones were
doubled or trebled-that is, divided up among several
holders, who exercise their functions in rotation, or who
did what the seventeenth and eighteenth centuries were too
.
c fond of doing, employed a humble subordinate to carry
'

them out ..... "

"Offices were sot1ght, then, with a frenzied energy, and
they were created with synicism Desmarets, one of Louis
D XIV's Comptroller-Generals, had proposed to the King the
establishment of some quite futile offices, and the latter
asked who would ever consent to buy such situation? 'Your
Majesty' replied Desmarets, 'is forgetting one of the most
splendid of the prerogatives of the Kings of France-that
when the King creates a \ob God_ immediately creates an
E idiot to buy it."

(See Theory and Practice of Modem Government-Herman Finer-
page 751)

The much desired transformation from patronage to open com-
F petition is later development, to which, now, all civilised governments
profess commitment. However, though there is agreement in principle
that there should be a search for the best talent particularly in relation
to higher posts, however, as to the methods of assessment of effi-
ciency, promise and aptitude, ideas arid policies widely vary, though it
has now come to be accepted that selection is an informed professional
G exercise which is best left to agencies independent of the services to
which recruitment is made. The 'interview' is now an accepted aid to
selection and is designed to give the selectors some evidence of the
personality and character of the candidates. Macaulay had earlier
clearly declared that a youngmen who in competition with his fellow-
. men of the same age had shown superiority in studies might well be
H regarded as having shown character also since he could not have pre-
M.A. TARIQ v. STATE OF RAJASTIIAN [VENKATACHALIAH, J.] 389

pared himself for the success attained without showing character in A
eschewing sensual pleasures. But the interview came to be recognised
as an essential part of the process of selection on the belief that some
qualities necessary and useful to public-servants which cannot be
found out in a written test would be revealed in a viva-voce examina-
tion. In justification of the value and utility of.the viva-voce, the com-
mittee on Class I examinations in Britain said: B

" ..... It is sometimes urged that a candidate, otherwise
well qualified, may be prevented by nervousness .from
doing himself justice viva-voce. We are not sure that such
lack of nervous control is not in itself a serious defect, nor
that the presence of mind and nervous equipoise which
enables a candidate to marshall all of his resources in such C
conditions is not a valuable quality. Further, ther.e are un-
doubtedly some candidates,mwho can never do themselves
justice in written examinations, just as there are others who
under the excitement of written competition do better than
on ordinary occasions ..... We consider that the viva-voce D
can be made a test of the candidate's alertness, intelligence
and intellectual outlook, and as such is better than any
other ..... "

As to the promise as well as the limitations of the viva-voce, Herman
Finer says: E

"Ifwe really care about the efficiency:Cifthe<:ivil service as
an instrument of government, rather than as a heaven~sent
opportunity to find careers for our brilliant students, these
principles should be adopted. The interview should last at
least half an hour on each of two separate occasions. It F
should be almost entirely devoted to a discussion ranging
over the academic interests of the candidate as shown in his
examination syllabus; and a short verbal report could be
required on such a subject, the scope of which would be
announced at the interview. As now, the interview should
be a supplementary test and not a decisive selective test. G
The interviewing board should include a business adminis-
trator and a university administrator. The interview should
come after and not before the written examination, and if
this means some inconvenience to candidates and examin-
ers, then they must remember that they are helping to select
the government of a great state, and a little inconvenience H
390 SUPREME COURT REPORTS [1988] Supp. 1 S.C.R.

is not to be weighed against such a public duty ..... "
A
(See Theory and Practice of Modem Government-Herman Finer at
page 779)

The problems of assessment of perso!'ality are indeed, comp-
B Iicated. On the promise as well as dang= of the pure,ly 'personal-
interview' method, Pfiffner-Presthus in his 'Public Administration' at
page 305 says:

"Pencil-and-paper tests that measure some aspects of
personality are now available. Notable among these are the
so-called temperament or personality inventories. These
c consist of questions in which the applicant is asked to
evaluate himself relative to certain aspects of psychiatry
and abnormal psy.£hology. Such tests are subject to a great
deal of controversy however, and there is a school of ex-
perimental psychologists which condemns them, mainly on
D two grounds. First, individuals will not give honest answers
in a competitive test that asks them to describe their abnor-
mal and intimate behaviour or beliefs. Second, it is
maintained that the value of these tests lies in their use as
the repeutic or clinical aids rather than as vehicles for com-
petition ... "
E
" ..... Appointing officers are afraid that examining pro-
cedures will fail to give proper. attention to such qualifica-
tions. The result is that they often feel they could do a
better job of selection using only the personal interview.
There are at least two reasons why this cannot be allowed.
F The first relates to the protective tendency of civil service;
appointing officers may appoint brothers-in-law or per-
sonal favourites. In addition, psychological research has
shown that the interview is of questionable validity, even in
the hands of an experienced executive."

G 7. The arguments in the case on the legality of the prescription
of minimum qualifying marks in the viva-voce turned more on the
undesirability of such a condition in the background of the increasing
public suspicion of abuse of such situations by the repositories of the
power. The standards of conduct in public-life, over the years, have,
unfortunately, not helped to lessen these suspicions. Tests o_f this kind
H owing to be repeated on sloughts on the sensibilities of the public in the
M.A. TARIQ v. STAJP OF RAJASTHAN IVENKATACHALIAH, J.] 391

past, tend themselves too readily to the speculation that on such occa-
sions considerations other than those that are relevant prevail. A

8. On a careful consideration of the matter, we are persuaded to
the view that the prescription of minimum qualifying marks of 60
(33%) out of the maximum marks of 180 set apart for the viva-voce
examination does not, by itself, incur any constitutional infirmity. The B
principles laid down in the cases of Ajay Hasia, Lila Dhar, Ashok
Kumar Yadav, do not militate against or render impermissible such a
prescription. There is nothing unreasonable or arbitrary in the stipula-
tion that officers to be selected for higher services and who are, with
the passage of time, expected to man increasingly responsible position
\ in the core services such as the Administrative Services and the Police
Services should be men endowed with personality traits conducive to C
the levels· of performance expected in such services. There· are features
that, distinguish, for instance, Accounts Service from the Police
Service-a distinction that draws upon and is accentuated by the
pers.onal qualities of the officer. Academic excellence is one thing.
Ability to deal with the public with tact and imagination is another. D
Both are necessary for an officer. ••Administrative and Police
Services constitute the cutting edge of the administrative machinery
and the requirement of higher traits of personality is not an unreason-
able expectation.

Indeed in Lila Dhar v. State of Rajasthan, [1982] 1SCR320, this E
Court observed:

"Thus, the written examination assessees the man's intellect
and the interview test the man himself and 'the twain shall
meet' for a proper selection. If both written examination
and interview test are to be essential feature of proper F
selection the question may arise as to the weight to be
attached respectively to them. In the case of admission to a
college, for instance, where the candidates personality is yet
to develop and it is too early to identify the personal qualities
for which greater importance may have to be attached in
later life, greater weight has per force to be given to perform- G
ance in the written examination. The importance to be
attached to the interview test must be minimal. That was
what was decided by this Court in Periakaruppan v. State of
Tamil Nadu; Ajay Hasia etc.. v. Khalid Mujib Sehravardi &

• • The dose that is demanded may v~ according to the nature of the service. H
392 SUPREME COURT REPORTS 11988] Supp. 1 S.C.R.

Ors. etc. and other cases. On the other hand, in the case of
A service to which recruitment has necessarily to be made from
persons of mature personality, interview test may be the only
way, subject to basic and essential academic and profes-
sional requirements being satisfied ..... "
(emphasis supplied)
B
" ... There are, of course, many services to which recruit-
ment is made from younger candidates whose personalities
are on the threshold of development and who show signs of
great promise, and the discerning may in an interview test,
catch a glimpse of the future personality in the case of such
services, where sound selection must combine academic
c ability with personality promise, some weight has to be
given, though not much too great weight, to the interview
test. There cannot be any rule of thumb regarding the pre-
cise weight to be given. It must vary from service to service
according to the requirement of the service, the minimum
D qualifications prescribed, the age group from which the
selection is to be made, the body to which the task of hold-
ing the interview test is proposed to be entrusted and host
of other factors. It is a matter for determination by experts.
It is a matter for research. It is not for courts to pronounce
upon it unless exaggerated weight has been given with pro-
E ven or obvious oblique motives. The Kothari Committee
also suggested that in view of the obvious importance of the
subject, it may be examined in detail by the Research Unit
of the Union Public Service Commission."
(emphasis supplied)

F This Court indicated that in matters such as these, which reflect
matters of policy, judicial wisdom is judicial restraint. Generally mat-
ters of policy have little adjudicative disposition.

9. Indeed, the point raised in the appeals admits of the answer
found in the pronouncement of this court in State of U. P. v. Rafiqud-
G din & Ors., Judgments Today 1987 (4) SC 257 where this Court con-
sidered the permissibility of the prescription of minimum qualifying or
cut-off marks in viva-voce examination, while dealing with clause (ii)
of the proviso to Rule 19 (as it stood prior to the 1972 amendment) of
the U.P. Civil Service (Judicial Branch) Rules 1951. The provision
required the. selection committee, inter alia, to ensure that persons
.H who did not secure sufficiently high marks in the interview were not
M.A. TARIQ v. STATE OF RAJASTHAN IVENKATACHALIAH, J.I 393

recommended for the posts. Pursuant to the power thus reserved to it,
the selection committee, prescribed certain minimum cut-off marks for A
the interview. This court upholding the validity of the prescription
observed at page 264 and 265:

" ... Aggregate marks obtained by a candidate determined
his position in the list, but the proviso of the rule required B
the Commission to satisfy itself that the candidate Md ob-
tained such aggregate marks in the written test as to qualify
him for appointment to service and further he had obtained
such sufficiently high marks in viva-voce which would show
his suitability for the service. The scheme underlying Rule
19 and the proviso made it apparent that obtaining of the
minimum aggregate marks in the written test and also the c
minimum in the viva-voce was the sine-qua-non before the
Commission could proceed to make its recommendation in
favour of a candidate for appointment to the service. The
Commission in view of clause (ii) of the proviso had power
to fix the minimum marks for viva-voce for judging the D
suitability of a candidate for service. Thus a candidate who
had merely secured the minimum of the aggregate marks or
above was not entitled to be included in the list of success-
ful candidates unless he had also secured the minimum
marks which had been prescribed for the viva-voce test
" E

" ... The Commission had, therefore, power to fix the
norm and in the instant case i.t had fixed 35 per cent
minimum marks for viva-voce test. The viva-voce test is a
well-recognised method of judging the suitability of a
candidate for appointment to public services and this F
method had almost universally been followed in making
selection for appointment to public services. Where selec-
tion is made on the basis of written as well as viva-voce test,
the final result is determined on the basis of the aggregate
marks. If any minimum marks either in the written test or in
viva voce test are fixed to determine the suitability of a candi- G
date the same has to be respected. Clause (ii) of the proviso
to Rule 19 clearly confers power on the Commission to fix
minimum marks for viva-voce test for judging the suitabi-
lity of a candidate for the service. We do not find any con-
stitutional legal infirmity in the provision."
(emphasis supplied) H
394 SUPREME COURT REPORTS [1988] Supp. 1 S.C.R.

This should, in o'ur opinion, conclude the present controversy in
A favour of the appellants.

10. Shri Rao's reference to and reliance upon the observations in
Yadav's case is somewhat out of context. The context in which the
observations were made was that the spread of marks for the viva-voce
B was so enormous, compared with spread of marks for the written
examination, that the viva-voce test 'tender to become the determin-
ing factor'. The reference was to the possibility of a candidate under-
servedly being allotted high marks at the interview. That is a very
different thing from the question whether a candidate should acquire
at least a certain minimum percentage of marks at the viva-voce. The
distinction in the two sets of situations is brought out in the words of an
C administrator Sir Ross Barket:

"My experience, which has been chiefly confined to cases in which
the number of candidates was not so large, is that the whole
process is dangerous and infinitely hazardous. I think most selec-
'D tion committees on which I have served have been very doubtful
about the results of what they had done. They have done their
best on insufficient materials. The process is I think fairly
successful in weeding out the worst candidates .... "
(emphasis supplied)

E (See 'Union Public Service Commission-M.A. Muttalib-page
135)

11. It is important to keep in mind that in his case the results of !
the viva-voce examination are not assailed on grounds of mala /ides or
bias etc. The challenge to the results of the viva-voce is purely as a
F consequence and incident of the challenge to the vires of the rule. It is
also necessary to reiterate that a mere possibility of abuse of a provi-
sion, does not, by itself, justify its invalidation. The validity of a provi-
sion must be tested with reference to its operation and efficacy in the
generality of cases and not by the freeks or exceptions that its applica-
tion might in some rare cases possibly produce. The affairs of Govem-
G ment cannot be conducted on principles of distrust. If the selectors had
acted mala fide or with oblique motives, there are, administrative law
remedies to secure reliefs against such abuse of powers. Abuse vitiates
any power.

We think that on a consideration of the matter, the High Court
H was in error in striking down the impugned rules. Accordingly, these
M.A. TARIQ " STATE OF RAtASTHAN (VENKATACHALIAH, J.) 395

appeals are allowed and the Judgement dated 6.2.1987 of the Division A
Bench of the High Court is set aside and the writ-petitions filed before
it challenging the validity of the impugned rules are dismissed. It is not
necessary to issue express directions in W.P. 286 of 1987 in view of the
fact that pursuant to the orders of stay dated 13.3, 198'2, the select-list
dated 17.7.1986 became amenable to be acted upon. With the settjng
aside of the Judgment of the High Court under .appeal, the impedi- B
ment in the effectuation of select-list dated 11:7.1986 stands removed.
In the circumstances of these cases, there will be .no order as to costs.

R.S.S. Appeals allowed.