Supreme Court of India
MOHINDER SAIN GARG ETC. ETC.versusSTATE OF PUNJAB AND ORS.
- Citation
- 1990 INSC 352
- Decided
- 15 November 1990
- Disposal
- Appeal(s) allowed
- Bench
- N M KASLIWAL
Holding
The Court held that a 25% weightage for viva voce in such direct recruitment is arbitrary and excessive, and should be limited to not more than 15% of total marks, but the existing selections were not set aside as they were not tainted by mala fides.
Summary
The State of Punjab advertised 47 (later 54) posts of Excise and Taxation Inspectors, requiring a written test (300 marks) and a viva voce interview (100 marks, 25% of total). Over 1,200 candidates were called for interview for the 54 vacancies, and the unsuccessful candidates challenged the procedure, alleging arbitrariness in the large interview pool and the excessive weightage of the viva voce, violating Article 14. The Punjab & Haryana High Court dismissed the writ petitions, but the Supreme Court, on special leave, examined precedents such as Ashok Kumar Yadav and held that a 25% allocation to viva voce is arbitrary and should not exceed 15% for fresh graduates in direct recruitment. However, the Court declined to set aside the already made appointments, finding no mala fides, and granted relief only to three petitioners whose merit justified appointment. The Court directed the respondents to appoint those three petitioners within a month and dismissed the remaining writ petitions.
Issues considered
- Whether allocating 25% of total marks to the viva voce interview in the selection of Excise and Taxation Inspectors is arbitrary and violative of Article 14 of the Constitution.
- Whether calling more than 1,200 candidates for interview for 54 vacancies renders the selection process arbitrary and vitiates the result.
- Whether the selections already made can be set aside despite the identified excesses.
- Whether the principles laid down in Ashok Kumar Yadav v. State of Haryana (12.2% limit) are applicable to subordinate selection bodies.
Legislation cited
- Constitution of Indias. Article 14
Subjects
viva voceinterview marksselection procedureArticle 14arbitrarinesspublic employmentExcise and Taxation Inspectorsspecial leaveSupreme Court of India
Judgment
A MOHINDER SAIN GARG ETC. ETC.
v.
-
STATE OF PUNJAB AND ORS.
NOVEMBER 15, 1990
B [N.M. KASLIWAL AND M. FATHIMA BEEYI, JJ.]
Civil Service:
Excise and Taxation Inspectors-Appointment of-Examina-
tion-Viva voce-Value and importance of-Fixing 25% of total
c
marks-Whether arbitrary and excessive-Calling for a large number
of candidates-Whether vitiates selection-Quashing of selection-
Desirabi/ity of.
..
For filling up 47 posts of Excise and Taxation Inspectors in
Punjab, the Chairman, Selection Committee issued an advertisement in
newspaper. The advertisement stated that there would be three written
papers in English, Punjabi and General i-.nowledge of Degree Stan-
D
dard and would carry 100 marks each. Those who obtain 33% in each
paper and 40% in the aggregate were to be called for interview which
would carry 100 marks.
The examination was held and the Selection Committee called
more than 1200 candidates for interview. By the time the Selectio
E commenced the vacancies increased to 54, comprising of 28 posts ot
Taxation Inspectors and 26 posts of Excise Inspectors. After the
interview and selection, all the 54 posts were filled, taking into account
the reservations made for Scheduled Caste, Backward class, Ex-
servicemen, dependents of freedom fighters etc. The appellants who
were unsuccessful in the interview filed a Writ Petition in the High
F Court challenging the procedure adopted by the Selection Committee.
The High Court dismissed the Writ Petitions following two Judgments
of its Full Bench, viz., Joginaer Singh v. State of Haryana, AIR 1966
Punjab & Haryana 339 and Vikram Singh & Ors. v. The Subordinate
Services Selection Board, Haryana & Ors., AIR 1988 Punjab &
Haryana 299. The appellants have preferred the appeals by special
G leave, against the Judgment of the High Court. The Writ Petitioners
have approached this Court direct challenging the selection made.
The appellants and the petitioners contended that since the Selec-
tion Committee had called 1200 candidates for interview for only 54
posts, it gave the power of arbitrariness for selection of the candidates.
H It was impossible lo carry out a satisfactory viva voce list if such a large
108
M.S. GARG v. STATE OF PUNJAB 109
number of candidates were .called for interview. The interview was not A
only casual but also superficial and sloppy and the assessment made at
such interviews can never reflect the true measure of the personality of
the candidates. It was also contended that keeping 100 marks for
interview, that is 25 per cent of the total marks, gave arbitrary powers
to the Selection Committee, and hence violative of Article 14 of the
B
Constitution.
On behalf of the respondents it.was contended that the. Writ Peti-
tions and appeals were not maintainable since all the respond~nts in the
High Court were not impleaded; that since the selected candidates have
already joined the posts such appointments may not be quashed. It was
further contended that the observations made in Ashok Kumar Yadav's c
case have no relevance to the present cases since the selection was made
by Departmental Selection Committee and not by Public Service Com-
mission; that all the candidates who had qualified in the written exami-
nation had to be called for interview irrespective of the number; that
marks were awarded by the members of selection Committee who
D
were experts, solely on the basis of the response of candidates and that
no ex~_,.sive marks were awarded to any candidate.
Dismissing the Writ Petitions and one appeal and allowing the
other appeals, this Court,
HELD: 1.1. Ashok Kumar Yadav'8 case was decided in 1985 and E
•
there is no reason why the State of Punjab did not follow the same for
making selections in 1989 for the posts of Excise and Taxation Ins-
pectors. It is no doubt correct that the selection of Taxation and Excise
Inspectors Is done by a Subordinate Selection body and not by Public
Service Commission yet no valid reason has been given as to why that
princij>lQ should not be applied in these cases as well. Even if the said F
principle may not in terms apply in these cases to the extent of laying
down 12.5% of the total marks for viva voce test which was made
applicable for selections to be made by V.P.S.C., 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
b1tally dispensed with, but taking note of the sitnation and conditions G
' prevailing in our country, it wonld 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 employ-
ment by direct recruitment where the rules provided for a composite ·process
) of selection--oamely, written examination and interview. [133G-H; 134A-C]
H
110 SUPREME COURT REPORTS [ 1990) Supp. 3 S.C.R.
1.2. It would be doing injustice to such candidates, who have
A already been selected and have joined the posts, to quash their selec-
tions even if it is held that 25 per cent marks for viva voce test were
excessively high. [134D-E]
1.3. Thongh it was not proper for the Selection Committee to
B have called as mnch as 1200 candidates for selection of 54 posts, the
selection cannot be vitia~ed merely on this ground as such action is not
tainted by any mala fide or oblique motive. The respondents also
stated that they had called all the eligible candidates as the same
practice was followed since 1970 and according to the rules all such
candidates had qualified in the written examination, and had to be
called for interview.
c
Ashok Kumar Yadav and Ors. etc. etc. v. State of Haryana & Ors.
etc. etc., [1985) Suppl. SCR 657; A. Periakaruppan etc. v. State of
Tamil Nadu & Ors., [1971) 2 SCR 430; Miss Nishi Maghu and Ors. v.
State of J & K & Ors., [1980) 4 SCC 95; Ajay Rasia & Ors. v. Khalid
D Mujib Sehravardi and Ors., [1981) 1 SCC 722; Koshal Kumar Gupta &
Ors. v. State ofJ & Kand Ors., [1984) 3 SCR 407, relied on.
State of U.P. v. Rafiquddin and Ors., [1987] Supp. SCC 401;
Mahmood Alam Tariq and Ors. v. State of Rajasthan & Ors., [1988] 3
sec 241; distinguished.
E
Liladhar v. State of Rajasthan & Ors., [1981] 4 SCC 159, referred
to.
2. Even if the entire selection is quashed and a direction given to
hold the viva voce test afresh by reducing the percentuge of marks, it
F would be a futile exercise so far as the two Writ Petitioners are con-
cerned, as they stood no chance of being selected even remotely.
According to Ashok Kumar Yadav's case candidates should be called
only three times the number of seats available for appointment. If that
criteria was applied then the two Writ Petitioners had absolutely no
chance of being called for interview for the one post of Taxation
G Inspector in the category of backward class. [135C-El.
•
Ashok Kumar Yadav and Ors. etc. etc. v. State of Haryana & Ors.
etc. etc. [1985] Suppl. SCR 657, referred to.
3.1. In the general category 897 candidates bad appeared in
H interview and so far as one of the four appellants, viz., Rajesh Kumar
M.S. GARG v. STATE OF PUNJAB 111
. '
Saili is· clJncerned, he secured 26 marks in interview and his position A
was 668th. He stood no chance of being called for interview if candidates
upto three times the number of the posts were called for interview. Even
if the percentage of marks in viva voce was reduced from 25 per cent to
15 per cent he stood no chance of selection even remotely. [135G-H)
3.2. The respondents are directed to appoint the other three B
appellants belonging to general category on the posts of Taxation
Inspector /Excise Inspector as the case may be, if they are otherwise
found suitable for these posts. It is further made clear that in case
anyone of these appellants has become over-aged during this period,
this would not be considered as a disqualification for their appointment
to the above post. [136G-H; 137-A)
c
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
5329-32 of 1990.
From the Judgment and Order dated 21.11.1990 of the Punjab &
Haryana High Court in C.W.P. Nos. 12423, 13188 A, 13537 and 13872 D
cl~. .
WITH
Writ Petition (Civil) Nos. 719 & 824 of 1990.
(Under Article 32 of the Constitution oflndia). E
M.S. Gujral, M.R. Sharma, R.K. Garg, Jagjit Singh, Ms. Kirti
Mishra, Ashok K. Mahajan, Ms. Anjana Sharma, B.P. Singh, Rajiv
Atma Ram, R.C. Kohli, L.K. Pandey, Mahabir Singh, Rana Ranjit
Singh, C.M. Nayar, Prem Malhotra, Ajit Pudussery for B.P. Singh,
and Naresh Bakshi for the appearing parties. F
The Judgment of the Court was delivered by
KASLIWAL, J. Special Leave granted.
G
The above two writ petitions and four civil appeals are disposed
of by one single order as identical questions of law are involved in
these cases. In order to appreciate the contrOversy in these cases we
shall refer to the paper book of civil appeal arising out of S.L.P. (Civil)
No. 14292 of 1989. All the appellants as well as the two petitioners in
the writ petitions would be referred herein ·as the petitioners. H
1
112 SUPREME COURT REPORTS [ 1990) Supp. 3 S.C.R.
A An advertisement was published iri the Tribune (English) on
August 3, 1988 by the office of the Excise and Taxation Commissioner,
Punjab-Chairman Selection Committee, Patiala for appointment to
47 posts of Excise and Taxation Inspectors. In the advertisement it was
provided that there will be three written papers of English, Punjabi
B and General Knowledge of B.A. standard. Those who get 33 per cent
marks in each paper and 40 per cent marks in aggregate will be called
for interview.. Total marks for the written test were kept at 300 and for
interview 100. Written examination was held in January, 1989 in which
all the petitioners appeared and were also called for interview but they
did not qualify in merit for appointment. It may be further mentioned
that by the time selection process had commenced, the number of
c posts were increased to 54. Out of the above petitioners, Charanjit
Singh falls in the category of Backward Class. Out of tlle above 54
posts, 28 posts were for Taxation Inspectors and 26 for Excise
Inspectors. After the interview out of 28 posts of Taxation Inspectors,
15 were filled by candidates of general category, 7 by scheduled castes,
l backward class, 4 exservicemen and 1 sportsman. Out of 26 posts of
D
Excise Inspectors, 14 were filled out of general category, 6 Scheduled
Castes, 1 backward class, 3 ex-servicemen, 1 sportsman and 1 depen-
dent of freedom fighter. The Selection Committee called more than
1200 candidates for interview for appointments to the above posts.
On a direction given by this Court the respondents produced the
E
original result sheets of Excise/Taxation Inspectors' Examination,
1989 according to which the petitioners secured the following marks:
Written Viva Voce
TI EI
F
Mohinder Sain Garg 182.5 32 36
Total 214.5 218.5
Balwinder Singh 176.5 36 39
Total 212.5 215.5
G
Chiranji Lal Sharma 170.5 37
Total 207.5
Ra jesh Kumar Saili 140 26
Total 166
H
•
M.S. GARG v. STATE OF PUNJAB [KASLIWAL. J.] 113
Davinder Pritpal Singh 129 68 A
Total 197
Charanjit Singh 143.5 32
Total 175.5
B
Though the petitioners had made allegations of ma/a fide against
the Selection Committee but this ground was not sustantiated and· the
petitioners did not press the ground of ma/a fide before us. The four
petitioners who have come before this Court by grant of special leave
had filed writ petitions in. the Punjab and Haryana High Court but the
same were dismissed following full Bench Judgments of that Court in
Joginder Singh v. State of Haryana & Ors., AIR 1966 Punjab & C
Haryana 339 and Vikram Singh and Another v. The Subordinate
Services Selection Board, Haryana and Others, AIR 1988 Punjab and
Haryana 299.
Learned counsel for the petitioners raised two grounds before D
us. The first ground of attack was that though the Selection Committee
had to select 54 candidates but it called more than 1200 candidates for
interview. This action of the Selection Committee gave the power of
arbitrariness for selection of the candidates. It was contended that it
would be impossible to carry out a satisfactory viva voce test if such a
large number of candidates were called for interview. The interview E
was not only casual but also superficial and sloppy and the assessment
made at such interviews can never reflect the true measure of the
personality of the candidate. Reliance in support of the above conten-
tion was placed on Ashok Kumar Yadav and Others v. State of
Haryana and Others, AIR 1987 SC454.
F
The second ground urged before us was that keeping 25 per cent
marks for interview gave arbitrary powers to the Selection Committee.
The selection of the candidates on the basis of such high percentage of
marks for interview was contrary to the provisions of Article 14 of the
Constitution. The respondents filed a counter affidavit before this
Court in which took an objection by way of preliminary submissions G
that the petitioners had not impleaded all the respondents in the High
Court as well as before this Hon'ble Court and as such .the writ peti-
tions and appeals were not maintainable. In the counter affidavit filed
in the case of Mohinder Sain Garg it was also averred that all the
vacancies except one stood filled up, appointment letters had been
issued and the selected candidates had joined the posts and as such the H
114 SUPREME COURT REPORTS [ 1990) Supp. 3 S.C.R.
appointments already made may not be quashed. That the above
A
mentioned full Bench cases of the Punjab and Haryana High Court
have held that fixation of 28.5 per cent marks for viva voce test were
not arbitrary and the High Court was justified in dismissing the writ
petitions. It was submitted before us that in Ashok Kumar Yadav's
case this Hon 'ble Court was dealing with the appointments made by
B the Public Service Commission and as such was setting up norms which
should guide all State Public Service Commissions in discharging their
functions. In the present case the selections have been made by the
Departmental Selection Committee which was chaired by the Commis-
sioner, Excise and Taxation and as such the observations made in
Ashok Kumar Yadav's case have no relevance in the present case. It
was also submitted that all the candidates who had qualified and
c cleared the written examination having secured 33 per cent marks in
each paper and 40 per cent in the aggregate had to be called for
interview, irrespective of the number which was more than 1200 in the
present case. It was also submitted in the reply that a decision was
taken by the State of Punjab, Office of the Excise and Taxation Com-
o missioner vide memo No. 4571/ET(V)-70/2247 dated 26.5 1970 for
appointment of Inspectors in the department by direct recruitment.
According to this decision the minimum educational qualification was
kept as graduate and it was also provided that the candidates may be
appointed on the post after taking a test which should comprise of 400
marks in the papers, namely, English-100, General Knowledge-JOO,
E Punjabi-JOO and Interview-100. 1t had also been decided as back as in
1970 that the candidate should obtain minimum of 33 per cent marks in
each paper and only those candidates would be called for interview
who had obtained 70 per cent marks in aggregate. All appointments
starting from 1970 uptil the present one had been made on the above
basis alone. The awarding of marks in viva voce has been left to the
F wisdom of the appointment committee as various things are judged
during the viva voce test such as, candidate's initiative, alertness,
resourcefulness, capacity for clear and logical presentation, effective-
ness in decision, effectiveness in meeting, dealing with others, adapta-
bility and judgment, ability to make decision, ability to lead and
intellectual and moral integrity etc. The Members of the Selection
G Board were experts in their respective fields and the Hon'ble High
Court after considering all the points and hearing both the parties
rightly dismissed the petitions in limine. It was denied that the Selec-
tion Committee had awarded excessive marks to some candidates \o
bring them high up in the merit list. The marks were awarded on the
basis of interviews conducted by the Selection Committee and the
H response given by the candidates at the time of interview was the sole
criteria of awarding marks.
M.S. GARG v. STATE OF PUNJAB [KASLIWAL, J.] 115
In order to decide the controversy raised before us, it would be A
necessary to examine the cases of this Court cited at the bar.
In A. Periakaruppan etc. v. State of Tamil Nadu & Ors., (1971] 2
S.C.R. 430 a Bench of three Judges considered the question of admis-
sion to certain medical colleges in the State of Tamil Nadu where 75
B
marks were kept for interview out of a total marks of 275. It was
observed as under:
"Earmarking 75 marks out of 275 marks for interview as
interview marks prima facie appears to be excessive. It is
not denied that the interview lasted hardly for three mi-
nutes for each candidate. In the course of three minutes c
interview it is hardly possible to assess the capability of a
candidate. In most cases the first impression need not
necessarily be the best impression. But under the existing
conditions in this country we are unable to accede to the
contention of the petitioners that the system of interview,
D
as in vogue in this country is so defective as to make it
useless. It is true that various researches conducted in other
countries particularly in U.S.A. show that there is possibi-
lity of serious errors creeping in interviews made on
haphazard basis. C.W. Valentine on "Psychology and its
Bearing on Education" refers to the marks given to the
same set of persons interviewed by two different competent E
Boards and this is what is stated in his book: "The members
of each board awarded a mark to each candidate and then
he was discussed and an average mark agreed on.
When the orders of merit for the two boards were
compared it was found that the man placed first by Board F
A was put 13th by Board B when the man placed !st by
Board B was 11th with Board A".
It was further observed:
G
"While we do feel that the marks allotted for inter-
view are on the high side and it may be appropriate for the
Government to re-examine the question, we are unable to
uphold the contention that it was not within the power of
the Government to provide such high marks for interview
or that there was any arbitrary exercise of power".
H
116 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
The Court did not accept the contention that the interview marks
A
were manipulated either by the Government or by the selection
committees.
In Miss Nishi Maghu and Others v. State of J & K and Others,
[1980] 4 S.C.C. 95 the dispute related to the selection of candidates
B admitted to the Government Medical College, Jammu for academic
year 1979-80. It was held by a Bench of three Judges:
"That the contention that interview system is not a reliable
test to judge the suitability of a candidate as many uncer-
tain factors were likely to affect the result of the interview,
reflects a legitimate point of view but it is a point of view
c only and cannot be taken as the last word on the subject."
It was further held:
"that reserving 50 marks for interview out of 150 (JOO for
D written examination and 50 for interview) does seem exces-
sive especially when the time spent was not more than 4
minutes on each candidate. As regards A. Periakaruppan's
case it was observed "when we say this we are not unmind-
ful of the observations in Periakaruppan's case quoted
above, which were made in a somewhat similar but not
E altogether identical situation. The finding was recorded
that there was no reliable material before the Court to
prove that there has been discrimination or manipulation
of the interview marks. That being so, and considering the
possible hardship, if the selections were now set aside, to
the students in whose case the validity of the selection can-
F not otherwise be questioned and who have nearly comp-
leted two terms, it would not be proper to annul the entire
selection. However, it is hoped that for future years the
State Government would reduce the percentage of marks
allowed for interview to a reasonable proportion of the
total marks for the selection test".
G
In Ajay Hasia and Others v. Khalid Mujib Sehravardi and Others,
[1981] 1 S.C.C. 722 a Constitution Bench of Five Judges considered
the writ petitions under Article 32 of the Constitution challenging the
validity of the admissions made to the Regional Engineering College,
Srinagar for the academic year 1979-80. In the above case out of a total
H of 150 marks, 50 marks were kept for interview. The Court considered
\
M.S. GARG v. STATE OF PUNJAB IKASL!WAL, J.] 117
the question of the validity of viva voce examination as a permissible A
test for sectiorr of candidates for admissions to a college. After quoting
passage from the Book on Public Administration in Theory and
Practice by M.P. Sharma and the passage from the book on Public
Personnel Adminstration by 0 I Glenn Stahl the Court observed as
under:
B
"But, despite all this criticism, the oral interview
method continues to be very much in vogue as a supple-
mentary test for assessing the suitability of candidates
wherever test of personal traits is considered essential. Its
relevance as a test for determining suitability based on
personal characteristics has been recognised in a number of c
decisions of this Court which are binding upon us. Reliance
was placed on R. Chitra/ekha v. State of Mysore, [1964] 6
SCR 368; A. Periakaruppan v. State of Tamil Nadu,
(supra) and Ms. Nishi Maghu and Others v. State off & K
and Others case (supra).
D
It was further observed in the above case:
"the oral interview test is undoubtedly not a very
satisfactory test for assessing and evaluating the capacity
and calibre of candidates, but in the absence of any better
test for measuring personal characteristics and traits, the E
oral interview test must, at the present stage, be regarded
as not irrational or irrelevant t~ough it is subjective and
based on first impression, its result is influenced by many
uncertain factors and it is capable of abuse. We would,
however, like to point out that in the matter of admission
to college or even in the matter of public employment, the F
oral interview test as presently held should not be relied
upon as an exclusive test, but it may be restored to only as
an additional or supplementary test and, moreover, great
care must be taken to see that persons who are appointed
to conduct the oral interview test are men of high integrity,
calibre and qualification". G
As regards reserving 50 marks for interview out of a total of 150
- it was held that allocating 33.33% of the total marks for oral interview
is plainly arbitrary and unreasonable. It was further observed in this
regard as under:
H
118 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
"It is significant to note that even for selection of
A
candidates for the I.A.S., the l.F.S. and the I.P.S., where
the personality of the candidate and his personal char-
acteristics and traits are extremely relevant for the purpose
of selection, the marks allocated for oral interview are 250
as against 1800 marks for the written examination, consti-
B tuting 12.2% of the total marks taken into consideration
for tl]e purpose of making the selection. We must, there-
fore, regard the allocation of as high a percentage as
33.33% of the total marks for the oral interview as inflect-
ing the admission procedure with the vice of arbitrariness
and selection of candidates made on the basis of such
admission procedure cannot be sustained".
c
The Court however did not think it proper in the exercise of its
discretion in setting aside the selections made for the academic year
1979-80 after the lapse of a period of about 18 months, since to do so
would be to cause immense hardship to those students in whose case
D the validity of the selection cannot otherwise be questioned and who
have nearly completed three semesters and, moreover, even if the
petitioners are ultimately found to be deserving of selection on the
application of the proper test, it would not be possible to restore them
to the position as if they were admitted for the academic year 1979-80,
which has run out long since. It was held:
E
"that it is true there is an allegation of ma/a fides against
the Committee which interviewed the candidates and we
may concede that if this allegation were established, we
might have been inclined to interfere with the selections
even after the lapse of a period of 18 months, because the
F writ petitions were filed as early as October-November
1979 and merely because the Court could not take up the
hearing of the writ petitions for such a long time should be
no ground for denying relief to the petitioners, if they are
otherwise so entitled. But we do not think that on the mate-
rial placed before us we can sustain the allegation of ma/a
G fides against the committee."
It was further held:
"We may also caution the authorities that though, in
the present case, for reasons which we have already given
H we are not interfering with the selection for the academic
M.S. GARG v. STATE OF PUNJAB [KASLIWAL, J.] 119
year 1979-80, the selections made for the subsequent
A
academic years would run the risk of irivalidation if such a
high percentage of marks is allocated for the oral interview.
We are of the view 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". B
In Liladhar v. State of Rajasthan & Ors., [1981) 4 SCC 159, a
Bench of three Judges considered the question of selection to
Ra jasthan Judicial Service by written examination as well as oral viva
voce test. The competitive examination. contained two papers in law
carrying JOO marks each and two papers, one in Hindi and the other in
English, each carrying 50 marks and a viva voce examination carrying c
JOO marks. Thus in the above case 25% of the total marks were kept
for the viva voce examination. By a writ petition under Art. 32 the
Selection to Rajasthan Judicial Service was sought to be quashed on
several grounds out of which one was the high percentage of viva voce
marks being clearly in violation of the dictum laid down by the Con- D
stitution Bench in Ajay Hasia case (supra). A. Periakaruppan and
Ajay Hasia's cases were distinguished on the ground that they were
cases for admission to colleges. It was pointed out that the provision
for marks for interview test need not and cannot be the same for
admission to colleges and entry in to public service. As regards the
words "or even in the matter of public employment" used in Ajay E
Hasia' case, it was observed as under:
"'The observations of the Court were made primarily,
in connection with the problem of admission to colleges.
where naturally, academic performance must be given
prime importance. The words "or even in the matter of F
public employment" occurring the first extracted passage
and the reference to the marks allocated for the interview
test in the Indian Administrative Service Examination were
not intended to lay down any wire, general rule that the
same principle that applied in the matter of admission to
colleges also applied in the matter of recruitment to public G
services. The observation relating to public employment
was per incuriam since the matter did not fall for the con-
sideration of the Court in that case. Nor do we think that
the Court intended any wide construction of their observa-
tion. As already observed by us the weight to be given to
the interview-test should depend on the requirement of the H
120 SUPREME COURT REPORTS I 1990] Supp. 3 S.C.R.
service to which recruitment is made, the source-material
A
available for recruitment, the composition of the Interview
Board and several like factors."
It may be further mentioned that in this case their Lordships
further considered that both the High Court and the Public Service
B Commission were independent bodies, outside executive control,
occupying special positions and enjoying special status under the Con-
stitution and the Rajasthan Judicial Service Rules under consideration
in that case had been made by the Governor of Rajasthan in consulta-
tion with the High Court of Rajasthan and the Rajasthan Public
Service Commission. The C6urt in the above case also took into con-
sideration that the interview test in that case was conducted by a body
c consisting of a Judge of the High Court, the Chairman and a Member
of the Public Service Commission and a special invitee expert. Court
observed:
"that there can surely be no legitimate grievance of hint of
D arbitrariness against this body. Yet another factor worthy
of consideration is that the candidates expected to offer
themselves for selection are not raw graduates freshly out
of college but are persons who have already received a
certain amount of professional training. The source mate-
rial is such that some weightage must be given to the
E interview test and can it possibly be said that twenty five
per cent of the total marks is an exaggerated weightage. We
may add here that it has been made clear by the Chairman,
Rajasthan Public Service Commission on whose behalf a
counter affidavit has been filed before us that the marks
obtained by the candidates at the written examination were
F not made available to the members of the Interview Board
either before or at the time of tj)e interview. We are
unhesitating of the view that the selection cannot be struck
down on the ground that more than due weightage was
given to interview test".
G In Koshal Kumar Gupta & Ors. v. State of J & K & Ors., [ 1984] 3
SCR 407 a Bench of three Judges considered the question of legality
and correctness of admissions to Bachelor Degree course for 1982-83
in Regional Engineering College at Srinagar. The challenge was to the
manner, the method and the number of marks assigned to viva voce
test. The allegations were that reservation of 85 marks for written
H examination and 15 marks for viva voce test had the prenicious
M.S. GARG v, STATE OF PUNJAB {KASLIWAL, J.) 121
tendency of affecting merit disclosed by the marks obtained at written A
examination. After placing reliance on Ajay Hasia;s case (supra) it was
held:
"that there was nothing Hlegal in keeping 15 marks out of
100 marks for viva voce test". ·
B
ht Ashok KWlltlT Yadav and Ors. etc. etc."· State of Haryanti lltid Ors.
etc. etc., I 1985) Suppl. SCI< 657 a Bench of four Judges again con·
sidered the question of percentage of marks kept for viva vace exami-
nation. In this case Rule 9 clause (l) of the Punjab Civil Service
(Executive Branch) Rules 1930 preseribed a competitive examination
for recruitment to posts in Haryafia Civil Service (executives) and
other allied services. Regulation I iii Appendix i lays down that the c
competitive examination shall include compulsory a11d optional sub-
jects and that every candidate shall take all the compulsory subjects
and not mote than three of the optional subjects, provided that ex·
servicemen shall not be required tO appear in the optional subjects. As
per Regulation 5, the compulsory subjects carded in the aggregate 400 D
marks and there was also viva voce ex.aniinatioli which was compulsory
and which carried 200 marks and .each optional subject carried 100
marks. The result was that the Y(fitten examination ratried an aggre-
gate of 100 marks for candidates in general and for ex-servicemen it
carded an aggregate of 400 marks while in case of both, the Viva .voce
examination carried 200 marks. Regulation 3· provided that no candi-
date shalt be eligible to appear in the Viva vote test unless he obtained
45% marks irt the aggregate of all subjects including at least 33%
marks in each of the language papers in Hindi and Hindi essay.
In a written examination held by the Haryana Public Service
Commission for recruitment to 61 posts in Haryana Civil Service
(Executive) and other allied services; over LiOO eandidates obtained
more than 45% marks atid thus quaiified for being called for the Viva
voce examination. the Haryana Public S~tvice Commission Invited ali
the candidates for the Viva vtice examination and the interviews lasted
for almost half a year. the fiUriibet of vacancies also rose during the
time taken up in the written examination and the viva. Voce test and
ultimately 119 posts became available for being filled and oti the basis
oftotal marks obtained in the written examination as well as viva voce
test, 119 candidates were selected and recommended by the Hatyana
Public Service Commission to the State GovetnriienL 'The candidaies
who obtained very high marks at the written exaiilination but obtained
poor marks in the viva Voce test atid as such couid not come within first H
122 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
l 19 candidates and were consequently not selected filed several writ
A
petitions in the High Court of Punjab and Haryana challenging· the
validity of the selection of 119 candidates and seeking a writ for quash-
ing and setting aside the same. The State of Haryana, Haryana Public
Service Commission, 3 members of the Haryana Public Service Com-
mission and 5 selected candidates were made respondents in the writ
B petitions. Several grounds for challenging the selection were taken but
in the present case we are concerned with the ground that the alloca-
tion of 200 marks for the viva voce test out of total of 900 marks for the
generality of students and a total of 600 marks for ex-servicemen was
arbitrary and excessive and it had the effect of distorting the entire
process of selection and accordingly it was unconstitutional as involv-
ing denial of equal opportunity in public employment and also the
c ground that the number of candidates called for interview were almost
20 times the number of vacancies and this not only imposed an intoler-
able burden on the Haryana Public Service Commission but also wide-
ned the scope for arbitrariness in selection by making it possible for
the Haryana Public Service Commission to boost up or deflate the
D total marks which might be obtained by a candidate. The High Court
set aside the selections and directed the Haryana Public Service Com-
mission and the State of Haryana to forthwith declare the result of
candidates of all categories on the basis of written examination alone,
scrupulously excluding all considerations of the viva voce test. The
selected candidates, State of Haryana and three members of the
E Haryana Public Service Commission came in appeal to this Court. This
Court held as under (see Headnote 4(i)):
'The Haryana Public Service Commission was not right in
calling for interview all the 1300 and odd candidates who
secure 45% or more marks in the written examination. It is
F clear on a plain natural construction of Regulation 3 that
what it prescribes is merely a minimum qualification for
eligibility to appear the viva voce test. Every candidate to
be eligible for appearing at the viva voce test must obtain at
least 45% marks in the aggregate in the written examina-
tion. But obtaining of minimum, 45% marks does not by
G itself entitle a candidate to insist that he should be called
for the viva voce test. There is no obligation on the
Haryana Public Service Commission to call for the viva
voce test all candidates who satisfy the minimum eligibi-
lity requirement. Where there is a composite test consisting
of a written examination followed by a viva voce test, the
H number of candidates to be.called for interview in order of
M.S. GARG '· STATE OF PUNJAB ,KASLIWAL, J.J 123
the marks obtained in the written examination should not
A
exceed twice or at the highest, thrice the number of vacan-
cies to be filled".
In the instant case, the Haryana Public Service Commis-
sion could not be said to be actuated by any ma/a fide or
oblique motive in calling for interview all the 1300 candi- B
dates because it was common ground between the parties
that this was the practice which was being consistently
followed by the Haryana Public Service Commission over
the years and what was done in this was nothing excep-
tional. Therefore the selections made by the Haryana
Public Service Commission could not be said to be vitiated
merely on the ground that as many as 1300 and more candi- c
dates representing mo.re than 20 times the number of avail-
able vacancies were called for interview, though it is not
right course to follow and not more than twice or at the
highest thrice, the number of candidates should have been
called for interview." D
See Head Note 5(i)
"While a written examination assesses the candidate's
knowledge and intellectual ability, a viva voce test seeks to
assess a candidate's overall intellectual and personal qua- E
lities. While a written examination has certain distinct
advantages over the viv.a voce test, there are yet no written
tests which can evaluate a candidate's initiative, alertness,
resourcefulness, dependableness, cooperativeness, capa-
city for clear and logical presentation, effectiveness in dis-
cussion, effectiveness in meeting and dealing with others, F
adaptability, judgment, ability to make decision, ability to
lead, intellectual and moral integrity. Some of these qua-
lities can be evaluated, perhaps with some degree of error,
by a viva voce test, much depending on the constitution of
the interview board. There can therefore be no doubt that
the viva voce test performs a very useful function in asses- G
sing personnel characteristics and traits and in fact, tests
the man himself and is therefore regarded as an important
tool along with the written examination.
See Head Note 5(ii)
H
There cannot be any hard and fast rule regarding the pre-
124 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
cise weight to be given to the viva voce test as against the
A written examination. It must vary from service to service
according to the requirement of the service, the minimum
qualification prescribed, the age group from which the
selection is to be made, the body to which the task of hold-
ing the viva voce test is proposed to be entrusted and a host
8 of other factors. It is essentially a matter of determination
by experts. The Court does not possess the necessary
equipment and it would not be right for the Court to pro-
nounce upon it, unless to use the words of Chinnappa
Reddy, J. in li/adhar's case "exaggerated weight has been
given with proven or obvious oblique motives."
c See Head Note 6
So far as candidates in general category are concerned, '
would be prudent and safe to follow the percentage
adopted by the Union Public Service Commission in case of
D selection to the Indian Administrative Service and other
allied services. The percentage of marks allocated for the
viva voce test by the Union Public Service Commission in
case of Indian Administrative Service and other allied
services is 12.2, and that has been found to be fair and just,
as striking a proper balance between the written examina-
E tion and the viva voce test. This Court would therefore
direct that hereafter in case of selections to be made to the
Haryana Civil Service (Executive Branch) and other allied
services, where the competitive examination consists of a
written examination followed by a viva voce test, the marks
allocated for the viva voce test shall not exceed 12 .2% of
F the total marks taken into account for the purpose of selec-
tion. The Court would suggest that this percentage should
also be adopted by the Public Service Commissions in other
States, because it is desirable that there should be unifor-
mity in the selection process through out the country and
the practice followed by the Union Public Service Commis-
G sion should be taken as a guide for the State Public Service
Commissions to adopt and follow. In case of ex-service
officers, having regard to the fact that they would ordina-
rily be middle aged persons with personalities fully
developed, the percentage of marks allocated for the viva
voce test may be 25. Whatever selections are made by the
H Haryana Public Service Commission in the future shall be
M.S. ,GARG v. STATE OF PUNJAB l)(ASLIWAL, J.] 125
on the basis that the ·marks allocated for the viva voce test A
shall not exceed 12.2% io case of candidates billonging to
the general category and 25% in case of ex ..ervice
officers."
The Court thereafter considered the effect of allocation of such a
high percentage of marks for viva voce test and observed as under; ( - · Q
pages 699-700)
"But the question which then arises for consideration is as
to what is the effect of allocatioo of such a high percentage
of marks for the viva vo.ce test, both in case of ex-servke
officers and in case of other candidates, on the selections C
made by the Haryana Public Service Commission. Though
we have taken the view that the percentage of marks al-
located for the viva voce test in both the cases is excessive.
we do not think we would be justified in the exercise.of our
discretion in setting aside the seh;ctions made by the
Haryan~ Public Service Commission after the lapse of O
almost two years. The candidates selected by the Haryana
Public Service Commission have already been appointed to
various posts and have been working on these posts since
the last about two years. Moreover the Pubjab Civil
.Service (Executive Branch) Rules 1930 under which 33.3%
marks in case of ex-service officers and 22.2% marks in E
case of other candidates, have been allocated for the viva
voce test have been in force for almost 50 years and
everyone has acted on the basis of these rules, If selections
made in accordance with the prescription contained in
these rules are now to be set aside, it wilt upset a large
number of appointments already made on the basis ohuch p
selections and the integrity and efficiency of the entire
administrative machinery would be seriously jeopardised.
We do not, therefore, propose to set aside the selections
made by the Haryana Public Service Commission though
they have been made on the basis of an unduly high
percentage of marks allocated for the viva voce test". G
Court .ultimately gave the following directions:
"We accordingly :allow the appeals, set aside the
judgment of the Punjab and Haryaoa High Court and
reject tbe challenge to the validity of the selections made H
126 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
A by the Haryana Public Service Commission to the Haryana
Civil Services (Executive Branch) and other allied services.
But in view of the fact that 1n unduly large number of
candidates were called for interview and the marks allo-
cated in the viva voc.e test were .excessively high, it is possi-
ble that some of the candidates who might have otherwise
B come in the select list were left out of it, perhaps unjustifi-
ably. He would therefore direct that all the candidates who
secured a minimum of 45% marks in the written ekamina"
tion but who could not find entry in the select list, should
be given one more opportunity of appearing in the com-
petitive examination which would now have to be held in
accordance with the principles laid down in this Judgment
c and this opportunity should be given to them, even though
they may have passed the maximum age prescribed by the .
rules for recruitment to the Haryana Civil Services (Execu-
tive Branch) and other allied services. We would direct that
in the circumstances of the case the fair order of costs
D would be that each party should bear and pay his own costs
throughout."
In State of U.P. ·v. Rafiquddin and Ors., [1987] Supp. SCC 401 a
Bench of two Judges considered the question relating to determination
of seniority of members appointed as Munsifs in the Uttar Pradesh
E Nyayik Seva as a result of competitive examinations of 1970, 1972 and
1973 held under the Uttar Pradesh Civil Service (Judicial Branch)
Rules, 1951. While determining the above question, it was held as
under:
"The Commission had power to fix norm and in the
F instant case it had fixed 35% 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 method had almost universally
been followd for making selection for appointment to
public services. Where selection is made on the basis of
G written as well as viva voce test, the final result is deter-
mined 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 candidate the same has to
be respected. Clause (ii) of the proviso to Rule 19 clearly
confers power on the Commission to fix minimum marks
H for viva voce test for judging the suitability of a candidate
M.S. GARG v. STATE OF PUNJAB [KASLIWAL, J.] 127
for the service. We do noi find any constitutional legal A
infirmity in the provision".
While determining the above question a reference was made to
Liladhar v. State of Rajasthan and Ashok Kumar and Ors. etc. v. State
of Haryana & Ors. etc. In the said context it was observed as under:
B
"In A.K. Yadav v. State of.Haryana, Constitution
Bench of this Court approved the view expressed in
Liladhar case. The Court observed there cannot be any
hard and fast rule regarding the weight to be given as
against the written examination. It must vary from service
to service; according to the requirement of the service; the
minimum qualification, prescribed age group from which C
the selection is to be made, the body to which the task of
holding the interview test is proposed to be entrusted and a
host of other factors. It is a matter for determination by
experts. The court does not possess the necessary equip-
ment and it would not be right for the Court to pronounce D
upon it. In Li/adhar Case, 25% of marks fixed for viva voce
test was upheld. In A.K. Yadav case, selection made by the
Haryana Public Service Commission for appointment to
the post of Haryana Civil Service (Executive and other
allied services) was under challenge. The Court held that
allocation of 33.3% for viv.a voce was high as it opened E
door for arbitrariness and in order to diminish it if not
eliminate the same the percentage needs to be reduced.
The Constitution Bench made observation that marks for
viva voce test should not exceed 12.2%. In spite of these
observations the Constitution Bench did not interfere or
strike down the selection instead it directed the Commis- F
sion to give one more opportunity to the aggrieved candi-
dates to appear at the competitive examination. In the in-
stant case there has been no allegation of ma/a fides or
arbitrariness against the Commission which held the viva
voce test. In the circumstances we do not consider it neces-
sary to set aside selection or issue any direction to the G
Public Service Commission or to the State Government as
rules relating to viva voce test and, therefore, it is not
necessary to issue any direction in the matter".
- In Mahmood Alam Tariq and Others v. State of Rajasthan and
Others, [1988] 3 SCC 241 the question involved was regarding the H
128 SUPREME COURT REPORTS [ 1990] Supp, 3 S.C.R.
validity of certain provisions of t11e Rajasthan State and Subordinate
A
Services (Direct Recruitment by Combined Competitive Examination)
Rules, 1962, The Rajasthan Administrative Service Rules, 1954, The
Rajasthan Forest Service Rules, 1962 which contained a provision
s.,ecial to the said three services and not applicable to other services,
that candidates, other than those belonging to Scheduled Castes and
B Spheduled Tribes should secure a minimum of 33% marks in the viva
voe4 test. The rules further stipulated that the candi(!ates for these
services must also secure 50% marks in the written examination, but
that was not in the area of controversy. While dealing with the above
questions a reference was made to cases Ajay Hasia, Li/adhar and
A.K. Yadav (supra). It was observed as under:
c "The much desired transformation from patronage to
open competition is a 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 relating to higher
D posts, however, as to the methods of assessment of effi-
ciency, promise an(! aptitude, ideas and policies widely
vary, though it has now come to be accepted that selection
is an informed professicnal 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
E and is designed to give the selectors some evidence of the
personality and character of the candidates. Macaulay had
earlier clearly declared that a young man who in competi-
tion with his fellowmen of the same age had shown supe·
riority in studies might well be regarded as having shown
character also since he could not have prepared himself for
F the success attained without showing character in eschew-
ing sensual pleasures. But the interview came to be recog-
nised 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 examination. In justification of
G the value and utility of the viva voce, the committee on
Class I examinations in Britain said:
•
. . . . It is .sometimes urged that a candidate, otherwise well
qualified, may be prevented by nervousness from doing
himself justice in viva voce. We are not sure that such lack
H of nervous control is not in itself a serious defect, nor that
)
' M.S. GARG v. STATE OF PUNJAB (KASL!WAL, J.] 129
the presence of mind and nervous equipoise which enables A
a candidate to marshall all of his resources in such condi-
tions is not a valuable quality. Further, there are undoub-
tedly some candidates who can never do themselves justice
mwritten examination, just as there are others who under
the excitement\of written competition do better than on
ordinary occasions ...... We consider that the viva voce B
can be made a te~tof 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:
c
If we really care about the efficiency of the civil service as
an instrument of government, rather than as a heavensent
opportunity to find careers for our brilliant students, these
l
principles should be adopted. The interview should last at
least half an hour on each of the two separate occasions. It D
should be also entirely devoted to a discussion ranging oveI_
I the academic interests of the candidate as shown in his
examination syllabus, and a short verbal report could be
announced at the interview. As now, the interview should
·be a supplementary test and not a decisive selective test.
The interviewing board should include a business adminis- E
trator and university administrator. The interview should
come after and not before the written examination, and if
this means some inconvenience to candidates and exami-
ners, then they must remember that they are helping to
select the government of a ·great State, and a little incon-
venience is not to be weighed against such a public duty F
As regardsA.K. Yadav's case it was observed as under:
"Shri Rao's reference to and reliance upon the obser-
vations in Yadav's case is somewhat out of context. The G
context in which the observations were made was that the
spread of marks.for the viva voce was so enormous, com-
pared with the spread of marks for the written examina-
tion, that the viva vocf· test, 'tended to become the
determining factor'. The reference was to the possibility of
a candidate undeservedly being allotted high marks at the H
130 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
A 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 distinc-
tion in the two sets of situations is brought out in the words
of an administrator Sir Ross Barker:
B "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 hazar-
dous. I think most selective 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 sucessful in weeding
c out the worst candidates ........ ".
The Judgment of the High Court was set aside and the writ
petitions challenging the validity of the impugned rules were
dismissed.
D
The position which emerges from the consideration of the above
cases is that A. Periakaruppan etc. v. State of Tamil Nadu & Ors., Ms.
Nishi Maghu and Others v. State of J & Kand Others and Ajay Hasia and
Others v. Khalid Mujib Sehravardi and Others, were cases for admis-
sions to colleges. In Liladhar v. State of Rajasthan & Ors., (supra) a
E Bench of three Judges then considered the question of selection to
Ra jasthan Judicial service by written examination as well as oral viva
voce test. In that case 25 per cent marks were kept for the viva voce
examination. One of the unsuccessful candidates filed a petition under
Art. 32 before this Court. One of the grounds taken was that the high
percentage of viva voce marks were clearly in violation of the dictum
F laid down by the Constitution Bench in Ajar Hasia' case. This Court in
Liladhar's case distinguished the cases of A. Periakaruppan and Ajay
Hasia on the ground that they were cases for admissions to colleges. It
was pointed out that the provision for marks for interview test need
not and cannot be 'the same for admission to colleges and entry into
public services. As regards the words "Or even in the matter of public
G employment". used in Ajay Hasia's case it was observed in Liladhar's
case that the observations of the Court were made, primarily, in con-
nection with the problem of admission to colleges where, naturally,
academic performance must be given prime importance. It was further
held that the observations relating to public employment was per
incurium since the matter did not fall for the consideration of the
H Court in that case. It was further held that the interview test in
M.S. GARG v. STATE OF PUNJAB {KASLIWAL, J.] 131
Liladhar's case was conducted by a body consisting of a Judge of High
A
Court, the Chairman and Member of the Public Service Commission
and a special invitee expert. Thus there could be no legitimate grie-
vance or hint of arbitrariness against such body. Another factor
worthy of consideration in that case was that the candidates expected
to offer themselves for selection were not raw graduates fresh out of
college but were persons who had already received a certain amount of B
professional training. The source material was such that some weigh-
tage was to be given to the interview test and in their Lordship's view
25 per cent of the total marks was not an exaggerated weightage. The
Court thus dismissed the petition in Liladhar's case.
The important case in chronology is of Ashok Kumar Yadav and
Ors. etc. etc. v. State of Haryana and Ors. etc. etc. (supra) decided by a
c
Bench of four Judges on which both the parties have placed reliance,
for in this case their Lordships considered all the earlier cases includ-
ing the case of Liladhar. In Ashok Kumar Yadav's case it was held that
there cannot be any hard and fact rule regarding the precise weight to
be given to the viva voce test as against the written examination. It D
must vary from service to service acco'rding to the requirement of the
service, the minimum qualification prescribed, age group from which
the selection is to be made, the body to which the task of holding the
viva voce test is proposed to be entrusted and a host' of other factors. It
is essentially a matter determined by experts. The Court does not
possess the necessary equipment and it would n_pt be right for the E
Court to pronounce upon it, unless ·to use the words of Chinnappa
Reddy, J. in Liladhar's case "exaggerated weight has been given·with
proven or obvious oblique motives."
However, it is important to note that in Ashok Kumar Yadav's
case Rule 9 Cl(I) of the Punjab Civil Services (Executive Branch) F
Rules, 1930 which prescribed a competitive examination for recruit-
ment to posts in Haryana Civil Services (Executive) and other allied
services came up for consideration.The Rule provided for a competi-
tive examination which included a written examination as well as viva
voce. For recruitment to 61 posts in Haryana Civil Services (Execu-
tive) and other Allied Services, over 1300 candidates obtained more G
than 45 per cent marks and were thus qualified for being called for viva
voce examination. Before the viva voce examination took place 119
posts became available for which more than 1300 candidates obtaining
45 per cent marks or more were called for viva voce. The Court in clear
' terms deprecated the calling for interview of 1300 and odd candidates
and observed that by obtaining of minimum of 45 per cent marks did H
132 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
not by itself entitle a candidate to insist that he should be called for the
A viva voce test. There was no obligation on the Haryana Public Service
Commission to call for the viva voce test all candidates who satisfied
the minimum eligibility requirement. It was also held that where there
was a composite test consisting of a written examination followed by a
viva voce test, the number of candidates to be called for interview in
B order of the marks obtained in the written examination, should not
exceed twice or at the highest thrice the number of vacancies to be
filled. However, the Court did not set aside the selection on the above
ground because the practice which was being consistently followed was
applied in the above case also and what was done was nothing excep-
tional. We are also of the view in the facts of the present case that
though it was not proper for the selection committee to have called as
c much as more than 1200 condidates for selection of 54 posts, 6ut the
selection cannot be vitiated merely on this ground as such action is not
tainted by any ma/a fide or oblique motive. The respondents in the
reply have also stated that they had called all the eligible candidates as
the same practice was followed from the year 1970 and according to
D the rules all such candidates had qualified in the written examinati()n
for being called in the viva voce test.
In Ashok Kumar Yadav's case .which related to public employ-
ment it was held in clear terms that as far as candidates in general
E
category are concerned, it would be prudent and safe to follow the
percentage adopted by the Union Public Service Commission in case
of selection to the Indian Administrative Service and other allied
-
services. The percentage of marks allocated for the viva voce test by
the U.P.S.C. in the above services was 12.2% and that has been found
to be fair and just as directing a proper balance between the written
examination and the viva voce test. A clear direction was given in the
F following terms "this Court would therefore direct that hereafter in
case of selections to be made to the Haryana Civil Services (Executive
Branch) and other allied services, where the competitive examination
consist of written examination followed by viva voce test, the marks
allocated for the viva voce test shall not exceed 12.2% of the total
marks taken into account for the purpose of selection." The Court
G further suggested that this percentage should also be adopted by the
Public Service Commissions in other States, because it was desirable
that there should be uniformity in the selection process throughout the
country and the practice followed by the U.P.S.C. should be taken as a
guide for the State Public Service Commissions to adopt and follow.
The Court also considered the effect of allocation of a high percentage
H of marks for viva voce test in Ashok Kumar Yadav's case. It was clearly
M.S. GARG v. STATE OF PUNJAB [KASL!WAL, J.] 133
held that the allocation of 200 marks for the viva voce test out of a total A
of 900 marks for the generality of candidates and a total of 600 marks
for ex-servicemen was arbitrary and excessive and it had the effect of
distorting the entire process of selection, The Court further took note
of the fact that the above percentage of 33.3% marks in case of ex-
service officers and 22.2% marks in cases of general candidates, had
been allocated for the viva voce test in force for almost 50 years and B
everyone had acted on the basis of these rules. It was considered that if
the prescription contained in· the rules was to be set aside, it would
upset a large number of appointments already made on the basis of
such selections and the integration and efficiency of the entire
administrative machinery would be seriously jeopardised. The Court
in the above circumstances did not set aside the selections already C
made on the basis of an unduly high percentage of marks allocated for
the viva voce test. The Court further observed· that an unduly large
number of candidates were called for interview and as the marks
allocated in the viva voce test were excessively high, it was possible
that some of the candidates who might have otherwise came in the
select list were left out of it, perhaps unjustifiably, considered .it D
proper to direct that all the candidates who secured a minimum of 45
per cent marks in the written examination but who could not find entry
in the select list, should be given one more opportunity of appearing in
the competitive examination which would now have to be held in
accordance with the principles laid down in the judgment ·and this
opportunity should be given to them, even though they may have E
passed the maxim\lm age prescribed by the rules for recruitment. We
may, in the same context, mention that the case of State of U.P. v.
Rafiquddin and Ors. (supra) and Mahmood Alam Tariq and Others v.
State of Rajasthan and Others (supra) already cited above are not cases
directly dealing with the controversy raised before us and are clearly
distinguishable. F
In our view Ashok Kumar Yadav's case clinches the issues raised
before us and being a decision given by four Judges is also binding on
us. That was a case relating to public employment and a direction was
given to all the public Service Commissions to follow the marks
allocated for viva voce test as done by the U.P.S.C. which was 12.2% G
of the total marks. Ashok Kumar Yadav's case was decided in 1985 and
we fail to understand as to why the State of Punjab did not follow the
same for making selections in 1989 for the posts of Excise and Taxation
Inspectors. It is no doubt correct that the selection of Taxation and
Excise Inspectors is done by a Subordinate Selection body and not by
Public Service Commission yet no valid reason has been given before H
134 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
us by learned counsel for the respondents as to why the principle
A enunciated in Ashok Kumar Yadav's case should not be applied in
these cases as well. Even if Ashok Kumar Yadav's case may not in
terms apply in the cases before us to the extent of laying down 12.2%
of the total marks for viva voce test which was made applicable for
selections to be made by U.P.S.C., we deem it proper to lay down
B 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
reason~ble to have the percentage of viva voce marks more than 15 per
cent of the total marks in the selection of candidates fresh from
c college/school for public employment by direct recruitment where
rules provided for a composite process of selection namely written
examination and interview.
We are also faced with the situation that selections for the above
D posts have already been made and the selected candidates have
already joined the posts long back. They were also not impleaded as
parties before the High Court as well above us. In the above circums-
tances it would be doing injustice to such candidates, who have already
been selected and have joined the posts, to quash their selections even
if we hold that 25 per cent marks for viva voce test were excessively
E high.
The question which now falls for consideration is as to what
direction can be given in these cases. Petitioners Charanjit Singh and
Davinder Prithpal Singh belong to the category of backward classes.
Charanjit Singh had secured 143.5 and Davinder Prithpal Singh had
F secured 129 marks in the written papers. A perusal of the original
marks sheet made available to us at the time of hearing shows ·that
Charan jit Singh had applied for being considered for both posts of
Excise Inspector as well as Taxation Inspector. He was however dis-
qualified for the post of Excise Inspector due to non fulfilment of
physical standard as stated in the advertisement. Davinder Prithpal
G Singh had applied for the post of Taxation Inspector only and both
these petitioners could lay claim for the post of Taxation Inspector
only. It may be noted that only one post was reserved in the category
of backward classes for the post of Taxation Inspector. 95 candidates
belonging to the backward classes had qualified in the written exami-
nation and as such called for interview. According to the respondents
H one post reserved in the category of backward classes had gone to
M.S. GARG v. STATE OF PUNJAB IKASLIWAL, J.J 135
Bhupinder Pal Singh who had secured 183 marks in the written papers
and 50 marks in viva voce test, thus in all 233. It has been contended on
behalf of these petitioners that Bhupinder Pal Singh having secured
233 marks was even entitled to have been selected in the general
category itself as the last candidate selected in the general category
had secured much less marks than 233 secured by Bhupinder Pal
Singh. We see no force in the above contention. The respondents have B
selected Bhupinder Pal Singh against the seat reserved for backward
class. That apart a large number of candidates belonging to backward
class had secured very high marks in written papers in comparison to
the two petitioners Charan jit Singh and Davinder Prithpal Singh who
has secured 143.5 and 129 marks in-the written papers. The original
marks sheet shows that atleast seven candidates of backward class had c
secured 170 to 176 marks in written papers but were not selected in
merit. Thus even if we had quashed the entire selections and would
have given a direction to hold the viva voce test afresh by reducing the
percentage of marks, it would have been a futile exercise so far as
these two petitioners are concerned, as they stood no chance of being
selected even remotely. Even if for argument's sake Bhupinder Pal D
Singh was given a post out of general category and then fill one post of
Taxation Inspector out of the 95 candidates belonging to the category
of backward class, it was well nigh impossible for the above mentioned
two petitioners to lay any claim for the Said one post reserved for
backward class. According to Ashok Kumar Yadav's case candidates
should be called only three times the number of seats available for E
appointment. If that criteria was applied then the above mentioned
two petitionersliad even no chance of being called for interview for
one post of Taxation Inspector in the category of backward class. Thus
we find no force in the appeal filed by Davinder Prithpal Singh and the
writ petition filed by Charanjit Singh.
F
Now, so far as the case of Mohinder Sain Garg, Chiranji Lal
Sharma, Balwinder Singh and Rajesh Kumar Saili falling in the
general category are concerned, they have secured 188.5, 170.5, 176.5
and 140 marks respectively. In the general category 897 candidates had
appeared in interview and so far as Rajesh Kumar Saili is concerned,
he secured 26 marks in interview and his position was 668th. He stood G
no chance of being called in interview if candidates upto three times
1
the number of the posts were called for interview. Even if the
percentage of marks in viva voce was reduced from 25 per cent to 15
per cent he stood no chance of selection even remotely. Thus he is not
entitled to any relief.
H
136 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
Mohinder Sain Garg having secured 182.5 marks in the written
A
examination and having 1lth position in the merit of marks secured in
the written papers, stood fairly good chance of being selected in case
the selections were made on the basis of 15 per cent marks kept in the
viva voce. So far as the case of Balwinder Singh having secured 176.5
and Chiranji Lal Sharma having secured 170.5 marks are concerned,
B they also had a probable chance of being selected in case the
percentage of marks in the viva voce mere reduced from 25 per cent to
15 per cent. Mr. Gu jral made a submission before us that no other writ
petition of any candidate in the general category is pending in the High
Court or before this Court though a long time has elapsed to the
selections. It has been prayed that these petitioners should be selected
for appointment. It has also been pointed out before us that these
c petitioners have become over age now for being selected in fresh
appointments to the posts of Taxation/Excise Inspectors.
We have taken into consideration the entire facts and circums-
tances of these cases. We have already taken the view that the selec-
D tions already made cannot be set aside. Many candidates in the general
category having secured lesser marks in the written examination in
comparison to the above three petitioners namely Mohinder Sain
Garg, Chiranji Lal Sharma and Balwinder Singh have been selected
as Taxation Inspector/Excise Inspector. We do not consider proper in
the interest of justice to cancel their appointments and to give a direc-
E tion to hold fresh selection after reducing the percentage of marks in
the viva voce test. No other candidate except the petitioners, having
secured more marks in the written examination than some of those
who have been selected in the general category are petitioners before
us. In view of these circumstances we deem it proper to grant relief to
these three petitioners. In Mohinder Sain Garg's case this Court on
F 12.12.89 had given a direction that one post shall be kept vacant, to be
given to the petitioner in the event of his success. In Chiranji Lat's case
this Court on 15.1.90 had given the direction that in the meantime if
further appointments are made by the respondents, one post should be
left vacant to be made available to the petitioner in the event of his
success. In Ba/winder Singh's case also a similar order was passed on
G 15.1.90.
As these appellants are succeeding in their appeals the respon-
dents are now directed to appoint these appellants on the posts of
Taxation Inspector/Excise Inspector as the case may be, if they are
otherwise found suitable for these posts. It is further made clear that in
H case anyone of these appellants has become over age during this
M.S. GARG v. STATE OF PUNJAB [KASLIWAL. J.] 137
period, this would not be considered as a disqualification for their A
appointment to the above post. The respondents shall take suitable
steps and pass appropriate orders for appointing these three petitio-
ners within one month of the communication of this order.
In the result the judgment of the High Court of Punjab artd
Haryana dated 29.11.89 is set aside and the appeals arising out of B
S.L.P. Nos. 14292/89, 15594/89 and 15595/89 are allowed and writ
petition Nos. 719 and 824 of 1990 and the appeal arising out of S.L.P.
No. 2913 of 1990 are dismissed.
In the facts and circumstances of the case the parties shall bear
their own costs.
c
G.N. SLP Nos. 1429289, 15594/89
and 15595/89 allowed
W.P.Nos. 7l9and824of 1990
dismissed .
' ' .,.
. .A l k .
·•.••
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