Anzar
Ahmad Vs. State of Bihar [1993] INSC 463 (28 October 1993)
AGRAWAL, S.C. (J) AGRAWAL, S.C. (J) KULDIP SINGH (J) CITATION: 1994 AIR 141 1994 SCC (1)
150 JT 1993 (6) 168 1993 SCALE (4)268
ACT:
HEADNOTE:
The
Judgment of the Court was delivered by S.C. AGRAWAL, J.
SLP
(Civil) No. 8444 of 1993 1. I.A. No. 1 of 1993 allowed. Special leave granted. SLP
(Civil) No. 7415 of 1993 2. Special leave granted.
3.
Both these appeals arising out of the judgment of the High Court of Patna dated
March 12, 1993 in C.W.J.C. No. 7475 of 1992, raise
the question whether the law laid down by this Court regarding fixation of
marks for interview in a selection would apply to a case where there is no
written test and the selection is made on the basis of academic performance and
interview.
4. The
selection in the present case was for appointment on the post of Unani Medical
Officer.
5. The
post of Unani Medical Officer was declared a Gazetted (Class 11) post by the
resolution of the Government dated April 1, 1979. On November 25, 1989, the Government of Bihar sent a requisition to the Bihar
Public Service Commission (hereinafter referred to as 'the Commission')
regarding appointment on 22 vacant posts of Unani Medical Officers. In the
letter of requisition it was stated that the procedure of appointment etc. on
these posts will be the same which applies to the incumbents of the State
Service cadre. The maximum age of the candidates on January 1, 1989 was prescribed as 35 years. The Secretary of the Commission
by his letter dated April 18, 1990 pointed out that appointment on the post of
initial cadre in the State Medical Service was being done on the basis of
competitive examination conducted by the Commission and that competitive
examination for appointment to the post of Unani Medical Officer could only be
held after the relevant rules are made. Thereupon the State Government by
letter dated September 20, 1990 informed the Commission that rules relating to
the post of Unani Medical Officer have neither been modified nor any rule for
competitive examination has been framed, and therefore, as in earlier cases,
the candidates for this post may be selected on the basis of interview. In the
said letter it was stated that for the said post of Unani Medical Officer degree
of B.U.M.S. or G.U.M.S. from any recognised university is essential and in
addition resident/internship training working of 6 months from any recognised
153 institution is necessary. By letter dated January 22, 1991 the State Government intimated to the Commission that
selection be made for 81 posts of Unani Medical Officers and the Commission was
requested to send its recommendation for appointment on 81 posts. Thereafter
the Commission issued advertisement on September 15, 1991 inviting applications for 81 posts of
Unani Medical Officers. The applicants appeared for interview before two Boards
presided by two members of the Commission. The selection was made on the basis
of marks given for viva voice and for academic performance. 100 marks were
allotted for viva voice test and 100 marks for academic performance. By letter
dated June 14, 1992, the Commission recommended the
names of 55 candidates for appointment on the post of Unani Medical Officer.
The said recommendation of the Commission was challenged by Dr Sadra Alam and
Dr Syed Wasim Asraf (respondents 6 and 7 respectively) in the High Court in a
writ petition filed under Article 226 of the Constitution.
During
the pendency of the said writ petition the 55 selected candidates were
appointed on the post of Unani Medical Officer by order of the State Government
dated March 2, 1993.
6. The
High Court, by its judgment dated March 12, 1993, has allowed the said writ
petition and has quashed the recommendation made by the Commission as contained
in letter dated June 14, 1992 and the State has been commanded not to issue any
notification of appointment pursuant to the said recommendation and if any
appointment had been made on the post in the meanwhile the same shall be deemed
to be null and void. The High Court has held that it had not been shown that
any policy decision had been taken by the Commission on the question of
allocation of 100 marks for viva voice and that the two members of the
Commission who headed two Boards for interviewing the candidates either themselves
took the decision in regard to the allocation of marks or they were told by
someone to evaluate the merit on the basis of the impugned allocation of marks.
According to the High Court, the question as to how much marks should be set
apart or allocated for the viva voice vis-a-vis the marks for the academic
qualifications relate to a policy matter which goes to the root of the
recruitment process and a decision on the question could be taken only by the
Commission, i.e., the whole body, and not by the members comprising the
Interview Boards or the Chairman individually. The High Court was of the view
that this finding was sufficient to render the whole selection process as
illegal. The High Court has, however, dealt with the question as to what should
be the percentage of marks for the viva voice and has held that in view of the
decisions of this Court allocation of 50 per cent marks for viva voice was
unjustified and arbitrary and that respondents 6 and 7, (petitioners in the
writ petition) had suffered prejudice on account of such wrong and arbitrary
allocation of marks and that the whole recruitment process has been vitiated on
that account.
7. As
regards the allocation of marks for viva voice and academic performance for the
impugned selection it has been pointed out before us by the learned counsel
appearing for the Commission that in the counter affidavit filed on behalf of
the Commission before the High Court it was 154 categorically stated that in
all cases where the recommendation is made only on the basis of interview
conducted by the Commission and no written qualifying examination is conducted,
it has always been the practice of the Commission to fix 50% marks for academic
achievement/educational qualifications and 50% marks for interview/viva voice
and only in cases where written examination is also conducted by the Commission
for screening the candidates, 100 marks are reserved for performance of the
candidates in such qualifying examination and 20 marks are reserved for
interview/viva voice. It has been submitted that since in the instant case the
recommendation was to be made only on the basis of interview and hence in
accordance with the past practice which is being followed consistently and for
a number of years, 50% marks were reserved for academic
achievements/educational qualifications and 50% marks were reserved for
interview/viva voice and selection and the recommendation was made by the
Commission on that basis. It has also been asserted in the counter-affidavit
filed on behalf of the Commission before this Court that the Commission has
never in the past prescribed 100 marks for academic achievement and 20 marks
for interview in cases where recommendation is made solely on the basis of
interview. Annexure 'A' to the said counter-affidavit contains the names of the
posts for which selection was made by the Commission during the period 1985-93
on the basis of interview and in all such selections the Commission had
allocated 50% marks for academic achievement and 50% marks for interview. Among
the posts mentioned in the said annexure is the post of Unani Medical Officer
for which interview was held on January 10, 1985 in pursuance of advertisement No. 54/83 and at the time
also 50% marks were allocated for academic achievement and 50% for interview.
This shows that the consistent practice that has been followed by the
Commission when selection is made on the basis of interview only is to allocate
50% marks for academic achievement and 50% marks for interview. This allocation
was made by the Commission in the selection for the post of Unani Medical
Officer held in 1985, which was made on the basis of interview only. Since the
selection for the post of Unani Medical Officer in the present case was also to
be made only on the basis of interview, as indicated by the State Government in
its letter dated September 20, 1990, the practice which was being followed in
the past was followed in this selection also and there was no need for the
Commission to take a fresh decision for allocation of marks for this selection.
It cannot, therefore, be said that the allocation of 50% marks for viva
voice/interview for the selection has not been made by the Commission but was
made by the members who headed the Interview Boards or by the Chairman
individually. The High Court, in our opinion, was not justified in holding that
the impugned selection was vitiated on account of the failure on the part of
the Commission to decide the matter of allocation of marks for viva voice vis-a-vis
academic qualifications.
8. We
may now examine the question regarding the validity of the fixation of 100
marks, i.e., 50%, for the interview.
The
High Court has held the same to be arbitrary and has placed reliance on the
decisions of this Court. In this context it may be mentioned that the decisions
of this Court 155 with regard to the fixation of marks for interview in a
selection broadly fall in two categories:
(i)
Selection for admission to educational institutions; and (ii) selection for
employment in service.
9. The
decisions of this Court in R. Chitralekha v. State of Mysore'; A. Peeriakaruppan
v. State of TN.2; Nishi Maghu v. State of J & K3; Ajay Hasia v. Khalid Mujib
Sehravardi4 and Koshal Kumar Gupta v. State of J & K5 relate to admission
to educational institutions and fall in the first category. In Ajay Hasia case4
it has been laid down that where selection is made on the basis of written test
followed by interview, allocation of more than 15% of the total marks for
interview would be arbitrary and unreasonable and would be liable to be struck
down as constitutionally invalid. Although in that case the Court was dealing
with admission to an educational institution viz., Regional Engineering
College, a passing reference has been made to "public employment" in
the following observation: (SCR p. 106: SCC p. 744, para 18) ".....We
would, however, like to point out that in the matter of admission to college or
even in the matter of public employment, the oral interview test as presently
held should not be relied upon as an exclusive test, but it may be resorted 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."
10. In
the context of selection for appointment to Public Service, viz., Rajasthan
Judicial Service, the question was considered by this Court in Lila Dhar v.
State of Rajasthan6. Under the relevant rules selection
was to be made on the basis of a written examination carrying 300 marks and
viva voice examination carrying 100 marks. There was thus allocation of 25% of
the total marks for viva voice examination. The said allocation was upheld as
valid.
Making
a distinction between selection for the purpose of admission to a college and
selection for appointment to service, this Court (Chinnappa Reddy, J.) has
observed: (SCR pp. 326-27: SCC p. 164, para 6) "...If both written
examination and interview test are to be essential features 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 candidate's 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 1 (1964) 6 SCR 368 : AIR 1964 SC 1823 2 (1971) 1 SCC 38 :(1971) 2 SCR 430 3
(1980) 4 SCC 95 : (1980) 3 SCR 1253 4 (1981) 1 SCC 722: 1981 SCC (L&S) 258:
(1981) 2 SCR 79 5 (1984) 2 SCC 652: 1984 SCC (L&S) 337 : (1984) 3 SCR 407 6
(1981) 4 SCC 159: 1981 SCC (L&S) 588: (1982) 1 SCR 320 156 decided by this
Court in Peerriakaruppan v. State of 7.N.2; Ajay Hasia v. Khalid Mujib
Sehravardi4 and other cases. On the other hand, in the case of services 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. To subject suc h
persons to a written examination may yield unfruitful and negative results,
apart from it being an act of cruelty to those persons."
11.
Referring to the words "or even in the matter of public employment"
in the above quoted observation in Ajay Hasia case4 it was stated: (SCR p. 330:
SCC p. 167, para 9) "...... The observation relating to public employment
was per incuriam since the matter did not fall for the consideration of the
Court in that case. Nor do we think that the Court intended any wide
construction of their observation. As already observed by us the weight to be
given to the interview test should depend on the requirement of the service to
which recruitment is made, the source-material available for recruitment, the
composition of the Interview Board and several like factors."
12. It
was further observed in the said decision: (SCR p. 325: SCC p. 163, para 5)
"It is now well recognised that while a written examination assesses a
candidate's knowledge and intellectual ability, an interview test is valuable
to assess a candidate's overall intellectual and personal qualities. While a
written examination has certain distinct advantage over the interview test
there are yet no written tests which can evaluate a candidate's initiative,
alertness, resourcefulness, dependableness, cooperativeness, capacity for clear
and logical presentation, effectiveness in discussion, effectiveness in meeting
and dealing with others, adaptability, judgment, ability to make decisions,
ability to lead, intellectual and moral integrity. Some of these qualities may
be evaluated, perhaps with some degree of error, by an interview test, much
depending on the constitution of the interview Board."
13. In
Ashok Kumar Yadav v. State of Haryana7 the
selection for the Haryana Civil Service (Executive) and Allied Services was
made on the basis of written examination and interview. The allocation of marks
for interview was 33.3% in the case of ex-service officers and 22.2% in the
case of other candidates. After quoting the, observations of Chinnappa Reddy,
J. in Lila Dhar case6 it has been observed by the Court: (SCR pp. 695-97: SCC
pp. 450-52, paras 23 and 25) "...... The competitive examination may be
based exclusively on written examination or it may be exclusively on interview
or it may be a mixture of both. It is entirely for the Government to decide
what kind of competitive examination would be appropriate i n a given case. ...
It is not for the Court to lay down whether interview test should be held at
all or how many marks should be allowed for the interview test. Of course 7
(1985) 4 SCC 417 : 1986 SCC (L&S) 88: 1985 Supp 1 SCR 657 157 the marks
must be minimal so as to avoid charges of arbitrariness, but not necessarily
always. There may be posts and appointments where the only proper method of
selection may be by a viva voice test.
accepted
as essential features of proper selection in a given case, the question may arise
as to the weight to be attached respectively to them. ... There cannot be any
hard and fast rule regarding the precise weight to be given to the viva voice
test as against the 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 holding the viva voice test is proposed to be entrusted and a
host of other factors. It is essentially a matter for determination by experts.
The Court does not possess the necessary equipment and it would not be right
for the Court to pronounce upon it, unless to use the words of Chinnappa Reddy,
J. in Lila Dhar case6 'exaggerated weight has been given with proven or obvious
oblique motives'."
14.
These observations would indicate that the matter of weight to be attached to
interview and the allocation of marks for interview vis-a-vis marks for written
examination can arise when written examination as well as viva voice test are
both accepted as essential features of proper selection and there also no hard
and fast rule regarding the precise weight to be given to the viva voice test
as against written examination, can be laid down and the said weight must vary from
service to service according to the requirement of the service. The question of
weight to be attached to viva voice would not arise where the selection is to
be made on the basis of interview only. In Ashok Kumar Yadav case7 this Court
has held that in the case of ex-service officers viva voice test may be
attached relatively greater weight because the personalities of such officers
being fully mature and developed it would not be difficult to arrive at a fair
assessment of their merits on the basis of searching and incisive viva voice
test. But at the same time the Court felt that the allocation of 33.3% marks
for viva voice test for ex-service officers and 22.2% for other candidates was
excessive and that the same should not exceed 25% for ex-service officers and
12.2% for other candidates.
15.
Applying the aforesaid decision in Ashok Kumar Yadav case7 this Court has held
that in the matter of selection for two posts of Excise and Taxation Inspectors
on the basis of written test and viva voice test where candidates are fresh
from college/school the allocation of marks for viva voice test should not
exceed 15 per cent. [See : Mohinder Sain Garg v. State of Punjab8.]
16. In
Munindra Kumar v. Rajiv Govil 9 the said percentage was maintained for
interview and group discussion. It was held that allocation of marks for
interview and group discussion should not exceed 10% and 5% respectively.
8
(1991) 1 SCC 662: 1991 SCC (L&S) 555 : (1991) 16 ATC 495 9 (1991) 3 SCC
368: 1991 SCC (L&S) 1052: (1991) 16 ATC 928 158
17. In
State of U.P. v. Rafiquddin10 this Court has upheld the fixation of 35 per cent
marks as the minimum marks for qualifying in the viva voice test for selection
for recruitment to the post of Munsif. It was observed: (SCR p. 816: SCC p.
415, para 9) "...... The viva voice 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 voice 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
voice test are fixed to determine the suitability of a candidate the same has
to be respected."
18.
Similarly in Mehmood Alam Tariq v. State of Rajasthan' 11 the Court has upheld fixation of 33% marks as minimum qualifying
marks for viva voice test.
19.
The High Court has placed reliance on the decision of this Court in Ashok alias
Somanna Gowda v. State of Kamatakal2. In
that case selection was made for the post of Assistant Engineer (Civil) and
(Mech.) for the Public Works Department and the said selection was made on the
basis of the marks obtained in the qualifying examination and the marks secured
in the interview. 100 marks were allocated for qualifying examination and 50
marks for interview. Relying on the decisions in Mohinder Sain Garg case8 and Ashok
Kumar Yadav case7 this Court held that allocation of 50 marks for interview was
high and only 15 per cent of total marks be allocated for interview. In that
case, however, this Court did not quash the selection that had been made and
did not also quash the rules on the basis of which the impugned selection had been
made but only directed that the appellants be appointed in case they were found
suitable in all other respects according to the rules. The said decision
appears to have been given in the particular facts of that case and it cannot
be said to have laid down a law different from that laid down in the earlier
decisions of this Court referred to above. We are unable to construe the said
decision to mean that the principles which govern the allocation of marks for
interview in a selection based on written and viva voice test would also apply
to a selection where no written test is held and the selection is based on
interview only.
20. In
the instant case, we find that the State Government in its letter dated September 20, 1990 has clearly stated that selection
should be made on the basis of interview. On the basis of this letter the
Commission could have made the selection wholly on the basis of marks obtained
at the interview. But in accordance with the past practice, the Commission has
made the selection on the basis of interview while keeping in view the academic
performance and with that end in view the Commission has allocated 50% marks
for academic performance and 50% marks for interview. It cannot be 10 1987 Supp
SCC 401 : 1988 SCC (L&S) 183 : (1987) 5 ATC 257 : (1088) 1 SCR 794 11
(1988) 3 SCC 241 : 1988 SCC (L&S) 757 :(1988) 7 ATC 741 :
1988
Supp 1 SCR 379 12 (1992) 1 SCC 28: 1992 SCC (L&S) 38: (1992) 19 ATC 68 159
held that the said procedure adopted by the Commission suffers from the vice of
arbitrariness. By giving equal weight to academic performance the Commission
has rather reduced the possibility of arbitrariness.
21.
For the reasons aforesaid we are unable to uphold the judgment of the High
Court setting aside the recommendation made by the Commission in its letter
dated June 14, 1992 as well as the appointments made in
pursuance of said recommendations. The appeals are, therefore, allowed, the
judgment of the High Court dated March 12, 1993 is set aside and the writ petition filed by respondents 6
and 7 is dismissed. The parties are left to bear their own costs.
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