VIKRAM SINGH AND ANR.versusSUBORDINATE SERVICES SELECTION BOARD, HARYANA AND ORS.

           VIKRAM SINGH AND ANR.
                                                                            A
                      v.
SUBORDINATE SERVICES SELECTION BARD, HARYANA
                  AND ORS.

                        NOVEMBER 15, 1990
                                                                            B
      [N.M. KASLIWAL AND M. FATHIMA BEEVI, JJ.]
      Civil Services:
     Haryana Excise and Taxation Inspectorate (State Service, Class
III) Rules, 1969-Selection for Excise Inspectors-Viva voce test-
Provision of28.5% of total marks-Whether reasonable.
      The Haryana Excise and Taxation Inspectorate (State Service,
Class III) Rules, 1969 prescribed 250 marks for the written test and 100
marks for viva voce for selection to that service. In the written examlna-
tion held by the State Subordinate Services Selection Board in 1985 for
the post of Excise Inspectors the appellants were declared successful for
the general category. They were then interviewed along with others in D
March 1986.
       In the writ petition preferred by the appellants before the High
Court seeking a direction to the respondents to declare the result the
affidavit filed by the Chairman of the Selection Board stated that they
had awarded viva voce marks out of 12.2% of the total marks as per the      E
ruling of the Court in Ashok Kumar Yadav v. State of Haryana, [1985]
Supp. SCR 657. In the amended petition the appellants took the plea
that prescribing 100 marks in the Rules for viva voce out of the total of
350 marks, i.e. 28.5%, was absolntely arbitrary and contrary to the law
so laid down. In the meantime, the Selection Board decided to reinter-
view the candidates as in its view the requirement of the Rules had not     F
been properly followed by the previous Board in respect of alloting of
marks in the viva voce. The appellants challenged the said decision as
illegal and unconstitutional.

    The High Court uphled the Rules on the view that Ashok Kumar
Yadav' s case had no application to the selection made by the Board.        G

     Allowing the appeal, the Court,

     HELD: 1: The principle and the ratio of Ashok Kumar Yadav's
case will apply to the selections made in the instant case also though
made by the Subordinate Services Selection Board. [88F]                     H

                                    83
    84         SUPREME COURT REPORTS                  [1990] Supp. 3 S.C.R.

        · Mohinder Sain Garg v. State of Punjab & Ors., (Civil
A
    Appeal Nos. 5329-32 of 1990 decided on November IS, 1990) referred
    to.

          Leeladhar v. State of Rajasthan & Ors., [1985) 4 SCC 149
    distinguished.
B
          2. In the first interview made by applying the correct principle
    the appellants were selected and put at Sr. Nos. 3 and 4 in the select list
    for appointment to the post of Excise Inspectors under the general
    category. They ought to have iJeen given appointment accordingly. [89E)

          3. Though the second interview on the basis of 100 marks for viva
c   voce test was wrong and illegal but still it would not be just and proper
    to cancel the selections already made as the selected candidates had
    joined posts long back. [89H-90A]

          4. The respondents should take suitable steps and pass appro-
D   priate orders for appointing the appellants on the post of Excise
    Inspectors within one month in case they are found otherwise suitable.
    In case they have become overage during the intervening period, it
    would not be considered as a disqualification for their appointment on
    the said posts. [908]

E         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2366                     '
    of 1989.

        From the Judgment and Order dated 3.6.1988 of the Punjab &
    Haryana High Court in Civil W.P. No. 4861 of 1986.

F         M.S. Gujral, R.K. Garg, M.R. Sharma, A.K. Mahajan, Rajiv
    Atma Ram, Ashok Mahajan, R.C. Kohli, L.K. Pandey, Mahabir
    Singh Rana, Rana Ranjit Singh, C.M. Nayar, Prem Malhotra, Ajit
    Pudussery, B.P. Singh and Ms. Narr.sh Bakshi, Jagjit Singh, Mrs.
    Kirti, Kewalramani and K.K. Khurana for the appearing parties.

G         The Judgment of the Court was delivered by

          KASLIW AL, J. This appeal by grant of special leave is directed
    against the Judgment of the High Court of Punjab & Haryana dated
    3rd June, 1988. The Subordinate Services Selection Board, Haryana
    by an advertisement dated 7th August, 1985 invited applications for
H   the posts of Excise Inspectors in the Excise and Taxation Department.
         VIKRAM v. SURORDINATE SERVICES [KASLIWAL. J.l              85

Orginally the number of posts was 11 but was subsequently raised' to
15. These posts of Excise Inspectors are governed by the Haryaiia A.
Excise and Taxation Inspectorate (State Service, Class III) Rules 1969
(hereinafter referred to as the Rules). It was further provided in the
Rules that no candidate shall be deemed to have qualified for viva voce
unless he obtains a minimum of 33% marks in each paper and 40% in
aggregate. There was, however, no minimum marks for the viva voce. B
The total marks of the written papers and viva voce was to determine
rank of the candidate.

      The Selection Board held a written test on 23/24.11.1985. The
result of the ·written test was declared on 15.1.1986. The appellants
were declared successful in the written test and were placed at SL Nos.·
5 & 7 respectively in the general category. According to the Rules C
following were the papers of the examination.

      1. English-100 Marks

      2. Hindi (In Devnagari script)-50 Marks                            D

      3. General knowledge-100 Marks

      4. Viva voce -100 Marks
                                 l
      According to the appellants, successful candidates in the written E
test were interviewed on 12.3.1986. The appellants were also inter-
viewed along with others. After waiting for some time, the appellants
represented to the Selection Board for the declaration of the result. As
there was unusual delay in the declaration of the results, the appellants
and three others filed a writ petition in the High Court of Punjab &
Haryana at Chandigarh seeking a direction to the respondents to F
declare the result of the competition held for the posts of Excise
Inspectors. A notice of mot.ion was issued and a counter affidavit was
filed on behalf of the respondent No. l. In the reply a plea was taken
that 283 candidates were interviewed by the Selection Board but the
result of 48 candidates was prepared. The correctness of this statement
was doubted by the Motion Bench which by its order ·dated 9th G
December, 1986 summoned the then Chairman of the Selection
Board. On 9th January, 1987 Col. _Bhim Singh, Chairman of the Selec-
tion Board appeared and he was directed to file an affidavit. Col. Bhim
Singh filed the affidavit on 10.1.1987. In the affidavit it was stated that
the Board called 290 candidates, out of which 283 appeared for
interview during the period 10th March to 13th March, 1986. This was H
    86          SUPREME COURT REPORTS                 [ 1990] Supp. 3 S.C.R.

    as per the practice of the Board. The Board called all the candidates
A
    for interview who qualified in the written test. The Board compiled
    results of viva voce in respect of all the 283 candidates, who appeared
    for interview. As per practice till the completion of interview the
    Board was not informed of the marks obtained by each candidate in
    the written-test. It was further stated in the affidavit that on comple-
B   tion of interviews the Board having gone. through the documents i.e.
    written test result and the viva voce results, came to the conclusion
    that it will be redundant to go below a particular figure in the written
    test as viva voce and the written test marks were to be added to get the
    final selection list. It was also stated in paras 6 & 7 of the affidavit as
    under:
c               6. That the Board then directed the Secretary, Subordi-
                nate Services Selection Board to produce list of candidates
                of various categories i.e. General, Scheduled Caste, Back-
                ward Caste and Ex-Servicemen. In this the Board directed
                the Secretary to produce lists of 3 times of the number of
D               vacancies as per the ruling given by the Supreme Court and
                the practice followed by the Haryana Public Service Com-
                mission. The Board also awarded viva voce marks out of
                12.5% of the written marks again as per practice followed
                by Haryana Public Service Commission and the ruling of
                the Supreme Court. Haying seen the written marks the
E               Board was satisfied that no injustice was done to candi-
                dates who stood lower than three times of the number of
                vacancies and their inclusion in the final list would have
                been an exercise in futility.

                7. The Board finally recommended for appointment of 6
F               candidates out of 19 candidates in the General category 5
                candidates out of 15 in the Scheduled Caste, one candidate
                out of 3 in Backward Class and 3 out of 11 candidates in the
                Ex-Servicemen category.

          The appellants sought permission of the Court to amend the
G   petition and the prayer was allowed. In the amended petition a plea
    was taken that according to the Rules the marks for the written test
    were 250 while those for the viva voce were 100 i.e. 40% of the written
    test marks have been kept for the viva voce test. It may be noted that
    the appellants wrongly calculated the viva voce marks as 40% because
    percentage of viva voce marks has to be calculated out of total marks
H   and not merely written test marks. Thus 100 marks for .viva voce out of
              VIKRAM v. SURORDINATE SERVICES [KASLIWAL, J.]              87

     the total marks 350 will come to 28.5%. The appellants also mentioned      A
     in the amended petition that the award of interview marks upto 40%
      (28.5% of the total marks) of the written test marks is absolutely
      arbitrary and is contrary to the law laid down by the Supreme Court in
      Ashok Kumar Yadav and Ors. etc. etc. v. State of Haryana and Ors etc.
     etc., [1985] Supp. SCR 657. Even in the selection to the I.A.S. the
     Union Public Service Commission awards interview marks out of              B
     12.2% of the written test marks.

            It has been submitted that the Selection Board had already
     interviewed the candidates by following the law laid down by the
     Supreme Court in Ashok Kumar Yadav's case and the appellants were
     put in the select list. The Selection Board however decided that all the
     candidates who had qualified in the written examination of the Excise
                                                                                c
     Inspectors may be reinterviewed as the requirement of the Rules had
     not been properly followed in respect of alloting of marks in the viva
     voce and also not prepared the results of the candidates who appeared
     for interview before the previous Board. According to the appellants
     this decision was wholly illegal. The action of the Board in seeking to    D
     reinterview all the 290 candidates was abundantly illegal. Further, the
     basis on which reinterview was sought to be held, was again contrary to
     the law laid down by this Court. The appellants thus challenged the
     action of the respondents is not declaring the result according to the
     first interview and its decision to reinterview all the applicants by
     keeping 100 marks for viva voce which was 28.5% of the total marks as      E
     illegal and unconstitutional.

           The respondents in the reply submitted that the affidavit by Col.
     Bhim Singh, the then Chairman of the Board was against the Rules
     applicable to the services and those Rules had been upheld by the full
     Bench of the Hon'ble High Court. It was further stated in the reply        F
     that from the record of the answering respondents it was no where
     mentioned that the previous Board took the decision that marks of the
     viva voce will be awarded to the candidates in view of Ashok Kumar
     Yadav's case. Ashok Kumar Yadav's case had no application to the
     selection made by the answering respondents and it was so held by the
     full Bench of the High Court. The affidavit of the then Chairman was       G
     not supported by the office record and as such the same is not helpful
     to the petitioners for the decision of the writ petition. During the
     course of arguments before this Court Mr. Mahabir Singh Learned
     counsel for the respondents fairly and candidly fonceded that the first
.>   interview had been made on the basis of Ashok Kumar Yadav's case,
     by taking 12.2% marks for viva voce examination instead of 28.5% and       H
    88          SUPREME COURT REPORTS                 [ 1990] Supp. 3 S.C.R.

    the appellants had been put in the select list.
A
          After considering all the cases decided so far on the subject we
    have given detailed reasons in our judgment given today, in Mohinder
    Sain Garg v. State of Punjab & Ors., (Civil appeal Nos. 5329-32 of
    1990 for taking the view, that Ashok Kumar Yadav's case lays down
B . the guidelines and principle to be applied in the matters of selection
    to the Public Services.

          The present case relates .to the selection of Excise Inspectors by
    the Haryana Government and Ashok Kumar Yadav's case was a case
    relating to the recruitment to the posts of Civil Services (Executive
    Branch), State of Haryapa. H was dearly directed in Ashok Kumar
c   Yadav's case that hereafter in case of selections to be made to the
    Haryana Civil Services (Executive Branch) and other allied services,
    where the competitive examination consists of a written test followed
    by a 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
D   se!ection. It was al.so observed that whenever selections are made by
    the Haryana Public Service Commission in future, they shall be made
    on the basis that the marks allocated for the viva voce test shall not
    exceed 12.2% in case of candidates belonging to the general category
    and 25% ifl case of ex-service officers. In our view the present selec-
    tion made on the basis of rules making a provision for 28.5% of marks
E   for viva voce test was highly excessive and in clear violation and disre-
    gard of the principle laid down in Ashok Kumar Yadav's case. It is· no
    doubt correct that in that case a direction was given in respect of the
    selections to be mad~ to the Haryana Civil Services (Executive
    Branch) and other allied services and to the selections to be made in
    future by the Haryana Public Service Commission, but in our view the
F   principle and the ratio of Ashok Kumar Yadav' s case will apply to the
    selections made in the present case also though by the Subordinate
    Service Selection Board. Learned counsel appearing for the respon-
    dents were unable to satisfy us that for selections for the posts of
    Excise Inspectors, it was just and reasonable to keep 28.5% marks for
    the viva voce test.
G
          It was contended on behalf of the respondents that Leeladhar v.
    State of Rajasthan & Ors., [ 1985] 4 SCC 149 still holds good in which
    25 % marks kept for viva voce examination was held to be good. It was
    also submitted that Lee/adhar's case was not overruled in Ashok
    Kumar Yadav's case but was rather affirmed. We see no force in the
H   above contention. Lee/adhar's case is totally distinguishable. In that
             VIKRAM v. SURORDINATE SERVICES (KASLIWAL, J.]                89

    case their Lordships were considering the question of selection to Ra·
    jasthan Judicial Service by written examination as well as viva voce        A
    test. In that case it was observed that the Rajasthan Judicial Service
    Rules under consideration were made by the Governor of Rajasthan in
    consultation with the High Court of Rajasthan and the Rajasthan
    Public Service Commission. Both High Court and the Public Service
    Commision were independent bodies, outside executive control,               B
    occupying special positions and enjoying special status under the Con-
    stitution. The Court also took into consideration that the interview test
    in that case was conducted by a body consisting of a Judge of the Hjgh
    Court, the Chairman and a Member of the Public Service Commission
    and a special invitee expert. It was observed that there can surely be
    no legitimate hint of arbitrariness against this body. Another factor
    worthy of consideration as noted in the above case was that the selec-      c
    tion was not of raw graduates freshly out of college but of persons who
    had already received a certain amount of professional training. Source
    material as such in that case was different from the present case and in
    the peculiar facts and circumstances of Leeladhar's case it was held
    that 25% of the total marks was not an exaggerated weightage. In the        D
    above circumstances Leeladhar's case was distinguished in Ashok
    Kumar Yadav's case. As already mentioned above ratio of Ashok
    Kumar Yadav',s case is fully applicable in the case in hand before us.

           It may be noted that in the first interview made on the basis of
    keeping 12.2% marks for viva voce, the appellants were selected and         E
    put at S. Nos. 3 & 4 in the select list. Learned counsel for the appel-
    lants submitted that the appellant Vikram Singh had obtained 146
    marks and appellant Nawab Singh 145 marks in the written papers and
    in' the first interview made on the basis of the principle laid down in
    Ashok Kumar Yadav's case, were selected for appointment to the post
    of Excise Inspectors under the general category. Mr. Mahabir Singh          F
    appearing on behalf of the State was unable to refuse the above con-
    tention and further made a statement that in case this Hon'ble Court
    would give a direction for their appointment, the State Government
    will make posts available for them. We have already taken the view
    that keeping 100 marks for viva voce test i.e. 2S.5% of the total marks
    was unreasonable and against the principle laid down in Ashok Kumar         G
    Yadav's case. The two appellants were in fact interviewed by the first
    Selection Board and by applying the correct principle were also
    selected for appointment to the post of Excise Inspectors and they
    ought to have been given appointment on the post of Excise Inspectors
~   on the basis of their selection by the first Selection Board. Though the
    second interview on the basis of 100 marks for viva voce test was wrong     H
    90         SUPREME COURT REPORTS                [ 1990] Supp. 3 S.C.R.

A   and illegal but we do not think it just and proper to cancel the selec-
    tions already made, as the selected candidates have already joined
    posts long back. We, therefore, allow this appeal, set aside the order
    of the High Court and direct the respondents to give appointments to
    the appellants Vikram Singh and Nawab Singh on the post of Excise
    Inspector in case they are found otherwise suitable for such post. It is
B
    further made clear that in case the appellants have become overage
    during the intervening period, it would not be considered as a disqua-
    lification for their appointment on the above posts. The respondents
    should take suitable steps and pass appropriate orders for appointing
    the appellants within one month of the communication of this order.

c         The parties shall bear their own costs.

    P.S.S.                                                 Appeal allowed.




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