Mehmood
Alam Tariq & Ors Vs. State of Rajasthan & Ors [1988] INSC 163 (11 May 1988)
Venkatachalliah,
M.N. (J) Venkatachalliah, M.N. (J) Misra Rangnath
CITATION:
1988 AIR 1451 1988 SCR Supl. (1) 379 1988 SCC (3) 241 JT 1988 (2) 417 1988
SCALE (1)1150
ACT:
Rajasthan
State and Subordinate Service (Direct Recruitment by combined Competition
Examination) Rules 1962/Rajasthan Police Service Rules 1954/Rajasthan Forest
Services Rules 1962/Rajasthan Forest Subordinate Service Rules, 1963: Rule
15(1) Proviso/Rule 25-Proviso (i)- Recruitment rule prescribing minimum
qualifying marks in the viva voce test-Such rule whether incurs constitutional
infirmity.
Statutory
Interpretation: Validity of Statutory provision-To be tested with reference to
its operation and efficacy in generality of cases-Not by freaks or exceptions
that its applications might in some rare cases possibly produce.
HEAD NOTE:
The
Rajasthan Public Service Commission conducted an examination in 1985 for
appointments to State Services. The recruitment rules contained a provision
that candidates should secure a minimum of 33% marks in the viva-voce test.
Some
of the candidates who failed to secure the minimum marks in viva-voce
challenged before the High Court the constitutionality of the provision in the
Rules stipulating such minimum cut-off marks. The High Court declared the
provision unconstitutional.
Before
this Court, it was urged on behalf of the selected candidates and the State of Rajasthan, that (I) the High Court fell into
a serious error in importing into the present case principles .... which
pertained to the proposition whether the setting apart of an excessive and
disproportionately high percentage of marks for viva-voce in comparison with
the marks of the written-examination would be arbitrary; and (2) the
prescription of minimum qualifying marks for the viva-voce test would not
violate any constitutional principle or limitation, but was on the contrary a
salutary and desirable provision.
On the
other hand, it was urged that (1) the principles laid down by this Court, which
the High Court had accepted, were sound and had acquired an added dimension in
the context of the increasingly denuded standards of probity and rectitude in
the discharge of public offices, and (2) the real thrust of the principles was
that any marking-procedure that made the oral test determinative of the fate of
a candidate was, in itself, arbitrary, and if this test was applied to this
case, the decision reached by the High Court would be unexceptionable.
380
Allowing the appeals, it was, ^
HELD:(1)
A sensitive, devoted and professionally competent administrative set-up could
alone undertake the ever-expanding social and economic roles of a welfare
state. [387A-B]
(2)
The 'interview' was now an accepted aid to selection and was designed to give
the selectors some evidence of the personality and character of the candidates,
which qualities were necessary and useful to public- servants. [388G-H]
(3)
Academic excellence was one thing. Ability to deal with the public with tact
and imagination was another. Both were necessary for an officer. The dose that
was demanded may vary according to the nature of the service.
Administrative
and Police Services constituted the cutting edge of the administrative
machinery and the requirement of higher traits of personality was not an
unreasonable expectation. [391D] Lila Dhar v. State of Rajasthan, [1982] 1 SCR 320 referred to.
(4)
The observations made by this Court in Ashok Kumar Yadav were in the context
where the spread of marks for the viva-voce was so enormous, compared with the
spread of marks for the written examination, that the viva-voce test 'tended to
become the determining factor'. The reference was to the possibility of a
candidate undeservedly being allotted high marks at the interview. That was a
very different thing from the question whether a candidate should acquire at
least a certain minimum percentage of marks at the viva-voce. [394B- C] Ashok
Kumar Yadav v. State of Haryana, [1985] Supp. 1 SCR 657 explained.
State
of U.P. v. Rafiquddin & Ors., (Judgment
Today (1987) 4 SC 257 referred to.
(5)
The prescription of minimum qualifying marks of 60 (33%) out of the maximum of
180 set apart for the viva-voce examination did not, by itself, incur any
constitutional infirmity. The principles laid down by this Court in the case of
Ajay Hasia Lila Dhar and Ashok Kumar Yadav did not militate against or render
impermissible such a prescription. [391B] Ajay Hasia v. Khalid Mujib Sehravardi
& Ors., [1981] 2 SCR 79; Lila Dhar v. State of Rajasthan & Ors., and Ashok
Kumar Yadav v. State of Haryana, distinguished.
(6) A
mere possibility of abuse of a provision, did not, by itself, justify its
invalidation. The validity of a provision must be tested with reference to its
operation and efficiency in the generality of cases and not 381 by the freaks
or exceptions that its application might in some rare cases possibly produce.
[394F-G]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 741 of 1987.
From
the Judgment and order dated 6.2.1987 of the Rajasthan High Court in D.B. Civil
Writ Petition No. 1632, 1758, 1826, 340, 1723, 344, 342, 343, 1755, 1756, 1757,
1982 of 1986, 170/87 and S.A. No. 341 of 1986 V.M. Tarkunde, Mrs. M. Karanjawala
and Ezaz Maqbool for the Appellant in C.A. No. 741/87 Dushyant Dava, Ezaz Maqbool,
Mrs. Manik Karanjawala for the Petitioners in W.P. No. 286/87.
C.M. Lodha,
P.P. Rao, Badri Das Sharma, Raj Kumar Gupta and P.C. Kapur for the Respondents.
P.K.
Jain for the Intervener in W.P. No. 286/1987.
The
Judgment of the Court was delivered by VENKATACHALIAH, J. These appeals by
Special Leave, arise out of the judgment, dated, February 6, 1987 of the
Division Bench of High Court of Rajasthan, disposing of by a common judgment a
batch of writ-appeals and writ petitions, in which was involved the question of
the validity of certain provisions of the Recruitment Rules made and
promulgated under the proviso to Article 309 of the Constitution by which, in
respect of the scheme of competitive examinations to be conducted by the Public
Service Commission for recruitment to certain branches of the civil services
under the state, certain minimum qualifying marks in the viva-voce test were
prescribed.
The
Division Bench, by its judgment under appeal, declared as arbitrary and
unconstitutional this prescription in the rules which required that the
candidates for selection to Administrative Service, the Police Service, and the
Forest Service of the State should secure a minimum of 33% of the marks
prescribed for the viva-voce examination.
In
these appeals the correctness of the High Court's view is questioned by the
State of Rajasthan, its Public Service Commission and
the successful candidates whose selections were, in consequence of invalidation
of the rule, quashed by the High Court.
The
Writ-Petition No. 286 of 1987 before us, is by another batch of candidates
selected by the Public Service Commission for issue of a writ of mandamus,
directing the State to effectuate the selection and 382 issue orders of
appointment. By an inter-locutory order, dated 13.3.1987 the operation of the
judgment under appeal was stayed by this court. The result of this stay is that
there was no impediment to effectuate the Select-List dated 17.7.1986.
2. The
Rajasthan State and Subordinate Services (Direct Recruitment by Combined
Competitive Examinations) Rules 1962, ('1962 Rules for Short'); the Rajasthan
Administrative Service Rules 1954, the Rajasthan Police Service Rules 1954, the
Rajasthan Forest Service Rules 1962 contain a provision, special to the said
three services, and not applicable to other services, that candidates, other
than those belonging to Scheduled Castes and Scheduled Tribes, should secure a
minimum of 33% of marks in the viva-voce test. It is this Rule which is the
centre of controversy. The Rules also stipulate that candidates for these three
services must also secure 50% in the written examinations; but that is not in
the area of controversy.
Proviso
(1) to Rule 15 of the '1962 rules' which is the relevant Rule brings out the
point. It provides:
15.
Recommendations of the Commission-(1) The Commission shall prepare for each
Service, a list of the candidates arranged in order of merit of the candidates
as disclosed by the aggregate marks finally awarded to each candidate. If two
or more of such candidates obtain equal marks in the aggregate, the Comission
shall arrange their names in the order of merit on the basis of their general
suitability for the service:
Provided
that:
(i) the
Commission shall not recommend any candidate for the R.A.S./R.P.S. who has
failed to obtain a minimum of 33% marks in the personality and viva voce
examination and a minimum of 50% marks in the aggregate. It shall also not
recommend any candidate for other services who has failed to obtain a minimum
of 45% marks in the aggregate.
(ii)------------------------------------
(2) Notwithstanding anything contained in proviso (i), the Commission shall in
case of candidates belonging to the Scheduled Castes or Scheduled Tribes
recommend the names of such candidates, upto the 383 number of vacancies
reserved for them for amongst. those who have qualified for interview, even if
they fail to obtain the minimum marks in viva voce or the aggregate prescribed
under proviso (i) above. " (emphasis supplied) Similar is the purport of
Proviso (i) to Rule 25 of the Rajasthan Administrative Service Rules 1954; the
Rajasthan Police Service Rules 1954; the Rajasthan Forest Service Rules 1962
and the Rajasthan Forest Subordinate Service Rules 1963. The Rajasthan Public Service
Commission conducts the competitive examination for selection for appointment
to these and several other services under the State. The maximum marks for the
written-examination is 1400 and for the viva-voce and personality test is 180,
which constitutes 11.9% of the aggregate marks. Rules in relation to the
Administrative Police and Forest Services require that candidates should secure
33% as minimum qualifying marks in the viva-voce. The High Court has struck
down these provisions stipulating the minimum cut-off marks at the viva-voce.
3. In
the year 1985 the Rajasthan Public Service Commission initiated proceedings for
selection to 16 services including the said three services. The written
examinations were conducted in october 1985 the results of which were published
in April, 1986. The viva-voce examinations and personality test were conducted
between June 11 & July
11, 1986. The final
Select-List was published on 17.7.1986. The five appellants in CA 741 of 1987
secured, respectively, 19th 23rd, 20th, 12th and 11th places. The 5 petitioners
in WP 286 of 1987 secured 10th, 13th, 14th, 17th and 18th places respectively
in the Select-List.
Some
of the candidates who failed to secure . the requisite minimum of 60 marks out
of the 180 marks prescribed for the viva-voce and could not, therefore, make
the grade in the said three services challenged before the High Court. The
Select-List on the ground of the unconstitutionality of the provision in the
Rules stipulating such minimum cut-off marks. They filed Writ- Petitions 1632
of 1986, 1723 of 1986, 1826 of 1986, 1842 of 1986, 1982 of 1986 and 170 of 1987
in the High Court. The petitions were referred to and came before a Division
Bench and were heard along with the special Appeals 340 to 344 of 1986 which
had been preferred against an earlier decision on the same question by a single
judge of the High Court.
4. We
have heard Sri C.M. Lodha, Sri Tarkunde, and Sri Shanti Bhushan, learned Senior
Advocates respectively, for the State of 384 Rajasthan, the Public Service
Commission and the selected- candidates; and Shri P.P. Rao Learned Senior
Advocate for the unsuccessful candidates at whose instance the Select- List was
quashed by the High Court.
It was
contended for the appellants that the High Court, in reaching such conclusions
as it did on the constitutionality of Proviso (i) to Rule 15 of the " 1962
rules" and of the corresponding Provisions in the Rules pertaining to the
other services wholly misconceived the thrust and emphasis of the
pronouncements of this court in Ajay Hasia v. Khalid Mujib Sehravardi &
Ors. etc., [1981] 2 SCR 79; Lila Dhar v. State of Rajasthan & Ors., [1982]
1 SCR 320 and Ashok Kumar Yadav v. State of Haryana and Ors. etc., [1985] Suppl.
1 SCR 657.
It was
urged that the High Court fell into a serious error in importing into the
present case, principles laid down in a wholly different context and that in
the said three decisions the question whether a minimum qualifying marks could
be prescribed for a viva-voce examination or not did not fall for consideration
much less decided, by this court. What was considered in those cases, counsel
say, pertained to the proposition whether the setting apart of an excessive and
disproportionately high percentage of marks for the viva-voce in comparison
with the marks of the written-examination would be arbitrary. Learned Counsel
further submitted that reliance by the High Court on the Report of the Kothari
Commission on the basis of which the prescription of minimum qualifying marks
for the viva- voce was done away with in the Competitive Examinations for the
Indian Administrative Service, Police Service and other central-services was
erroneous as that report was merely an indication of a policy-trend. It was
submitted that even the Kothari Commission had itself advised further
evaluation of the matter. It was further submitted for the appellants that the
prescription of minimum qualifying-marks for the written-examination or the
viva-voce or for both, is a well recognised aspect of recruitment procedures
and that a prescription of a maximum of 11.9% of the total marks for the
viva-voce examination, with a condition that the candidate must get at least,
33% out of these marks for selection to the three key-services would not
violate any constitutional principle or limitation; but on the contrary would,
indeed, be a salutary and desirable prescription, particularly having regard to
the nature of the services to which recruitment is envisaged. It was submitted
that personnel recruited to the high echelons of Administrative, Police and
Forest services with the prospect, with the passage of time, of having to
assume higher responsibilities of administration in these three vital
departments of Government, should be tried men with dynamism and special attain
385 ments of personality. It was pointed out that though the pay-scale of the
Accounts Service and Insurance Service are the same as that of the
Administrative Service, such a prescription is not attracted to the selection
to these other services.
5. Shri
P.P. Rao, learned Senior Advocate, appearing for the candidates who had failed
to secure the minimum at the viva-voce and whose challenge to the selection had
been accepted by the High Court, submitted that the principles which the High
Court had accepted were sound and that the decision under appeal would require
to be upheld. Sri Rao submitted that the principles enunciated in the Ajay Hasia,
Lila Dhar and Ashok Kumar Yadav acquire an added dimension in the context of
the increasingly denuded standards of probity and rectitude in the discharge of
public offices-and that attempts to vest a wide discretion in the selectors
should not be too readily approved. According to Sri Rao, the real thrust of
the principle laid down in these cases is that any marking-procedure that make
the oral test determinative of the fate of a candidate is, in itself,
arbitrary. Shri Rao relied upon the following passage in Ashok Kumar Yadav's
case [1985] Suppl. 1 SCR 657 at 697-98):
"...
The spread of marks in the viva-voce test being enormously large compared to
the spread of marks in the written examination, the viva-voce test tended to
become a determining factor in the selection process, because even if a
candidate secured the highest marks in the written examination, he could be
easily knocked out of the race by awarding him the lowest marks in the viva-
voce test and correspondingly, a candidate who obtained the lowest marks in the
written examination could be raised to the top most position in the merit list
by an inordinately high marking in the viva-voce test. It is therefore obvious
that the allocation of such a high percentage of marks as 33.3 per cent opens
the door wide for arbitrariness, and in order to diminish, if not eliminate the
risk of arbitrariness, this percentage need to be reduced..." (emphasis
supplied) Shri Rao submitted that the correct test, flowing from the earlier
decisions, is to ask whether the viva-voce tended to become the determing
factor in the selection process. If so, it would be bad. If this test is
applied to the present case Sri Rao says, the requirement of minimum, cut-off
marks in the viva-voce makes that viva-voce a "de- 386 termining
factor" in the selection-process and falls within the dictum of the
earlier cases and the decision reached by the High Court accordingly is
unexceptionable. Sri Rao, sought to demonstrate how the Rule operated in
practice and as to how candidates at the top of the results in written-
examination had failed even to secure the minimum in the viva-voce, particularly
in the Interview Board presided over by a certain Sri Khan. He showed with
reference to several instances how the performance in the written-examination
and the viva-voce bear almost an inverse proportion.
The
High Court accepted those grounds urged in invalidation of the impugned rule
and held:
"
. . . The question before us is slightly different and relates to the essential
requirement of obtaining the prescribed minimum qualifying one third marks out
of those allotted for the viva- voce test, since the percentage of marks allot ted
for the viva-voce test as compared to the written test is within the
permissible limit. The test of arbitrariness even in such a case is however,
indicated by the ratio decidendi of Ashok Kumar Yadav case (supra).
It was
clearly held by the Supreme Court in Ashok Kumar Yadav's case (supra) that any
method which makes the viva-voce test a determining factor in the selection
process resulting in a candidate securing high marks in the written examination
being easily knocked out in the race by awarding him low marks in the viva-voce
test and vice versa is arbitrary and is liable to be struck down on that ground
. . ."
6. We
may now examine the merits of the rival contentions. The modern state has moved
far away from its concept as the 'Leviathan' with its traditional role symbolised
by the two swords it wielded-one of war and the other of justice. The modern,
pluralist, social-welfare state with its ever-expanding social and economic
roles as wide-ranging as that of an Economic-Regulator, Industrial Producer and
Manager, Arbitrator, Educationist, Provider of Health and Social-Welfare
services etc., has become a colossal service-corporation. The bureaucracy,
through which the executive organ of the state gives itself expression, cannot
escape both the excitement and the responsibility of this immense social
commitment of the Welfare-State. Today the bureaucracy in this country carries
with it, in a measure never before dreamt 387 Of, the privilege and the burden
of participation in a great social and economic transformation, in tune with
the ethos and promise of the constitution for the emergence of a new
egalitarian and eclectic social and economic order-a national commitment which
a sensitive, devoted and professionally competent administrative set-up alone
can undertake. A cadre comprised of men inducted through patronage, nepotism
and corruption cannot, morally, be higher than the methods that produced it and
be free from the sins of its own origin. Wrong methods have never produced
right results.
What,
therefore, should impart an added dimension and urgency to the Recruitment to
the services is the awareness of the extraordinary vitality and durability of
wrong selections. With the constitutional guarantee of security, the machinery
for removal of a Government Servant on grounds of in-efficiency and lack of
devotion remains mostly unused.
The
authors of a work on "Britain's Ruling Class"*** say:
"ONE
OF THE MAIN ATTRACTIONS of working for the
Civil
Service is job security. Once they let you in, you have to do something
spectacularly improper to get kicked out. In 1978 out of 5,67,000
non-industrial civil servants, just 55 were sacked for disciplinary reasons; 57
were retired early 'on grounds of inefficiency or limited efficiency'; 123 were
retired early on grounds of redundancy'. In practice, a modest dose of common
sense and propriety allows you to stay a civil servant until you retire. In the
middle and senior administration grades many do just that. 82 per cent of
permanent Secretaries have been in the Civil Service for 25 years or more; so
have 79 per cent of Deputy Secretaries, 62 per cent of Under Secretaries and 70
per cent of Senior Executive officers." "... Recruiting civil
servants means picking as many potential high flyers as possible-and at the
same time as few potential albatrosses. It is a task carried out by the Civil
Service Commission- with scrupulous honesty, but questionable efficiency."
The history of the evolution of the civil services in some countries is in
itself study in contrasts as fascinating as it is disquieting.
***
The Civil Servants; An Inquiry into Britain's Ruling Class: Peter Kellnor and
Lord Crowther-Hunt at 388 In France, until the Revolution, almost every office,
central or local, excepting the dozen or so of the highest offices were
attainable only by private purchase, gift or inheritance. All Public officer
were treated as a species of private property and voluminous jurisprudence
governed their transmission. Of this spectacle, a learned authority on Public
Administration says:
"Prices
rose, but there was a frantic buying.
Ministers
made the most of their financial discovery. As it soon be came too difficult to
invent new offices, the old ones were doubled or trebled-that is, divided up among
several holders, who exercise their functions in rotation, or who did what the
seventeenth and eighteenth centuries were too fond of doing, employed a humble
subordinate to carry them out "offices were sought, then, with a frenzied
energy, and they were created with synicism Desmarets, one of Louis XIV's
Comptroller- Generals, had proposed to the King the establishment of some quite
futile offices, and the latter asked who would ever consent to buy such
situation? 'Your Majesty' replied Desmarets, 'is forgetting one of the most
splendid of the prerogatives of the Kings of France-that when the King creates
a job God immediately creates an idiot to buy it." (See Theory and
Practice of Modern Government-Herman Finer- page 751) The much desired transformation
from patronage to open competition is later development, to which, now, all civilised
governments profess commitment. However, though there is agreement in principle
that there should be a search for the best talent particularly in relation to
higher posts, however, as to the methods of assessment of efficiency, promise
and aptitude, ideas and policies widely vary, though it has now come to be
accepted that selection is an informed professional exercise which is best left
to agencies independent of the services to which recruitment is made. The
'interview' is now an accepted aid to selection and is designed to give the
selectors some evidence of the personality and character of the candidates.
Macaulay had earlier clearly declared that a youngmen who in competition with
his fellowmen of the same age had shown superiority in studies might well be
regarded as having shown character also since he could not have pre 389 pared
himself for the success attained without showing character eschewing sensual
pleasures. But the interview came to be recognised A 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 the value and utility of the viva-voce, the committee on Class
I examinations in Britain said: B "....... It is sometimes urged that a
candidate, otherwise well qualified, may be prevented by nervousness from doing
himself justice viva-voce.
We are
not sure that such lack of nervous control is not in itself a serious defect,
nor that the presence of mind and nervous equipoise which enables a candidate
to marshall all of his resources in such conditions is not a valuable quality.
Further, there are undoubtedly some candidates who can never do themselves
justice in written examinations, just as there are others who under the
excitement of written competition do better than on ordinary occasions .. We
consider that the viva-voce can be made a test of the candidate's alertness,
intelligence and intellectual outlook, and as such is better than any other ..
.." As to the promise as well as the limitations of the viva- voce, Herman
Finer says: E "If we really care about the efficiency of the civil service
as an instrument of government, rather than as a heaven-sent opportunity to
find careers for our brilliant students, these principles should be adopted.
The interview should last at least half an hour on each of two separate
occasions. It should be almost entirely devoted to a discussion ranging over
the academic interests of the candidate as shown in his examination syllabus,
and a short verbal report could be required on such a subject, the scope of
which would be announced at the interview. As now, the interview should be a
supplementary test and not a decisive selective test. The interviewing board
should include a business administrator and a university administrator. The
interview should come after and not before the written examination, and if this
means some inconvenience to candidates and examiners, then they must remember
that they are helping to select the government of a great state, and a little
inconvenience H 390 is not to be weighed against such a public duty ..
(See
Theory and Practice of Modern Government-Herman Finer at page 779) The problems
of assessment of personality are indeed, complicated. On the promise as well as
dangers of the purely 'personal-interview' method, Pfiffner-Presthus in his
'Public Administration' at page 305 says:
"Pencil-and-paper
tests that measure some aspects of personality are now available. Notable among
these are the so-called temperament or personality inventories. These consist
of questions in which the applicant is asked to evaluate himself relative to
certain aspects of psychiatry and abnormal psychology. Such tests are subject
to a great deal of controversy however, and there is a school of experimental
psychologists which condemns them, mainly on two grounds. First, individuals
will not give honest answers in a competitive test that asks them to describe
their abnormal and intimate behaviour or beliefs.
Second,
it is maintained that the value of these tests lies in their use as the repeutic
or clinical aids rather than as vehicles for com petition . . .
"...
Appointing officers are afraid that examining procedures will fail to give
proper attention to such qualifications. The result is that they often feel
they could do a better job of selection using only the personal interview.
There are at least two reasons why this cannot be allowed. The first relates to
the protective tendency of civil service; appointing officers may appoint
brothers- in-law or personal favourites. In addition, psychological research
has shown that the interview is of questionable validity, even in the hands of
an experienced executive."
7. The
arguments in the case on the legality of the prescription of minimum qualifying
marks in the viva-voce turned more on the undesirability of such a condition in
the background of the increasing public suspicion of abuse of such situations
by the repositories of the power. The standards of conduct in public-life, over
the years, have, unfortunately, not helped to lessen these suspicions. Tests of
this kind owing to be repeated on sloughts on the sensibilities of the public
in the 391 past, tend themselves too readily to the speculation that on such
occasions considerations other than those that are relevant prevail.
8. On
a careful consideration of the matter, we are persuaded to the view that the
prescription of minimum qualifying marks of 60 (33%) out of the maximum marks
of 180 set apart for the viva-voce examination does not, by itself, incur any
constitutional infirmity. The principles laid down in the cases of Ajay Hasia,
Lila Dhar, Ashok Kumar Yadav, do not militate against or render impermissible
such a prescription. There is nothing unreasonable or arbitrary in the
stipulation that officers to be selected for higher services and who are, with
the passage of time, expected to man increasingly responsible position in the
core services such as the Administrative Services and the Police Services
should be men endowed with personality traits conducive to the levels of
performance expected in such services. There are features that, distinguish,
for instance, Accounts Service from the Police Service-a distinction that draws
upon and is accentuated by the personal qualities of the officer. Academic
excellence is one thing. Ability to deal with the public with tact and
imagination is another. Both are necessary for an officer. **Administrative and
Police Services constitute the cutting edge of the administrative machinery and
the requirement of higher traits of personality is not an unreasonable
expectation.
Indeed
in Lila Dhar v. State of Rajasthan, [1982] 1 SCR 320, this Court observed:
"Thus,
the written examination assessees the man's intellect and the interview test
the man himself and 'the twain shall meet' for a proper selection.
If
both written examination and interview test are to be essential feature of
proper selection the question may arise as to the weight to be attached
respectively to them. In the case of admission to a college, for instance,
where the candidates personality is yet to develop and it is too early to
identify the personal qualities for which greater importance may have to be
attached in later life, greater weight has per force to be given to performance
in the written examination.
The
importance to be attached to the interview test must be minimal. That was what
was decided by this Court in Periakaruppan v. State of Tamil Nadu; Ajay Hasia
etc. v. Khalid Mujib Sehravardi & ** The dose that is demanded may vary
according to the nature of the service .
392
Ors. etc. and other cases. On the other hand, in the case of A service to which
recruitment has necessarily to be made from persons of mature personality,
interview test may be the only way, subject to basic and essential academic and
professional requirements being satisfied .. " (emphasis supplied) "
. . . There are, of course, many services to which recruitment is made from
younger candidates whose personalities are on the threshold of development and
who show signs of great promise, and the discerning may in an interview test,
catch a glimpse of the future personality in the case of such services, where
sound selection must combine academic ability with personality promise? some
weight has to be given, though not much too great weight, to the interview
test. There cannot be any rule of thumb regarding the precise weight to be
given. It must vary from service to service according to the requirement of the
service, the minimum qualifications prescribed, the age group from which the
selection is to be made, the body to which the task of holding the interview test
is proposed to be entrusted and host of other factors. It is a matter for
determination by experts. It is a matter for research. It is not for courts to
pronounce upon it unless exaggerated weight has been given with proven or
obvious oblique motives. The Kothari Committee also suggested that in view of
the obvious importance of the subject, it may be examined in detail by the
Research Unit of the Union Public Service Commission." (emphasis supplied)
This Court indicated that in matters such as these, which reflect matters of
policy, judicial wisdom is judicial restraint. Generally matters of policy have
little adjudicative disposition.
9.
Indeed, the point raised in the appeals admits of the answer found in the
pronouncement of this court in State of U.P. v. Rafiquddin & Ors.,
Judgments Today 1987 (4) SC 257 where this Court considered the permissibility
of the prescription of minimum qualifying or cut-off marks in viva- voce
examination, while dealing with clause (ii) of the proviso to Rule 19 (as it stood
prior to the 1972 amendment) of the U.P. Civil Service (Judicial Branch) Rules
1951. The provision required the selection committee, inter alia, to ensure
that persons who did not secure sufficiently high marks in the interview were
not 393 recommended for the posts. Pursuant to the power thus reserved to it,
the selection committee, prescribed certain minimum cut-off marks for the
interview. This court upholding the validity of the prescription observed at
page 264 and 265:
"
. . . Aggregate marks obtained by a candidate determined his position in the
list, but the proviso of the rule required the Commission to satisfy itself
that the candidate had obtained such aggregate marks in the written test as to
qualify him for appointment to service and further he had obtained such
sufficiently high marks in viva-voce which would show his suitability for the
service. The scheme underlying Rule 19 and the proviso made it apparent that
obtaining of the minimum aggregate marks in the written test and also the minimum
in the viva-voce was the sine- qua-non before the Commission could proceed to
make its recommendation in favour of a candidate for appointment to the
service. The Commission in view of clause (ii) of the proviso had power to fix
the minimum marks for viva-voce for judging the suitability of a candidate for
service. Thus a candidate who had merely secured the minimum of the aggregate
marks or above was not entitled to be included in the list of successful
candidates unless he had also secured the minimum marks which had been
prescribed for the viva-voce test "... The Commission had, therefore,
power to fix the norm and in the instant case it had fixed 35 per cent minimum
marks for viva-voce test. The viva-voce test is a well-recognised method of
judging the suitability of a candidate for appointment to public services and
this method had almost universally been followed in making selection for
appointment to public services.
Where
selection is made on the basis of written as well as viva-voce test, the final
result is determined on the basis of the aggregate marks. If any minimum marks
either in the written test or in viva voce test are fixed to determine the
suitability of a 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
for viva-voce test for judging the suitability of a candidate for the service.
We do not find any constitutional legal infirmity in the provision." (emphasis
supplied) 394 This should, in your opinion, conclude the present controversy in
favour of the appellants.
10. Shri
Rao's reference to and reliance upon the observations in Yadav's case is
somewhat out of context. The context in which the observations were made was
that the spread of marks for the viva-voce was so enormous, compared with
spread of marks for the written examination, that the viva-voce test 'tender to
become the determining factor'.
The
reference was to the possibility of a candidate underservedly being allotted
high marks at the interview.
That
is a very different thing from the question whether a candidate should acquire
at least a certain minimum percentage of marks at the viva-voce. The
distinction in the two sets of situations is brought out in the words of an
administrator Sir Ross Barket:
"My
experience, which has been chiefly confined to cases in which the number of
candidates was not so large, is that the whole process is dangerous and
infinitely hazardous. I think most selection committees on which I have served
have been very doubtful about the results of what they had done. They have done
their best on insufficient materials. The process is I think fairly successful
in weeding out the worst candidates ...." (emphasis supplied) (See 'Union
Public Service Commission-M.A. Muttalib- page 135)
11. It
is important to keep in mind that in his case the results of the viva-voce
examination are not assailed on grounds of mala fides or bias etc. The
challenge to the results of the viva-voce is purely as a consequence and
incident of the challenge to the vires of the rule. It is also necessary to
reiterate that a mere possibility of abuse of a provision, does not, by itself,
justify its invalidation. The validity of a provision must be tested with
reference to its operation and efficacy in the generality of cases and not by
the freeks or exceptions that its application might in some rare cases possibly
produce.
The
affairs of Government cannot be conducted on principles of distrust. If the
selectors had acted mala fide or with oblique motives, there are,
administrative law remedies to secure reliefs against such abuse of powers.
Abuse vitiates any power.
We
think that on a consideration of the matter, the High Court was in error in
striking down the impugned rules.
Accordingly,
these 395 appeals are allowed and the judgement dated 6.2.1987 of the Division A
Bench of the High Court is set aside and the writ-petitions filed before it
challenging the validity of the impugned rules are dismissed. It is not
necessary to issue express directions in W.P. 286 of 1987 in view of the fact
that pursuant to the orders of stay dated 13.3.1987, the select-list dated
17.7.1986 became amenable to be acted upon. With the setting aside of the
Judgment of the High Court under appeal, the impediment in the effectuation of
select-list dated 17.7.1986 stands removed. In the circumstances of these
cases, there will be no order as to costs.
R.S.S.
Appeals allowed.
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