JUDGMENT
G.T. Nanavati, C.J.
1. The petitioner is serving as a Junior Clerk-cwm-Cashier in Baitarani Gramya Bank, oppt. party No. 1. On 26-3- 1987 the Bank issued a circular informing ail concerned that it wanted to till up 24 posts of Field Supervisor by internal promotion from among the eligible Junior Clerk-cum -Cashiers. The promotions were to be given on the basis of appraisal of performance of the eligible candidates and result of the viva voce test. Those clerks who had put in six years’ service were to be considered as eligible for promotion. For appraisal of the performance, 70 marks and for viva voce test 30 marks were allotted. It appears that in the Board’s meeting which was held on 25-5- 1987 it was decided that the minimum eligible marks shall be 40%, i.e., 28 out of 70 marks, allotted for appraisal of the performance. The appraisal was to be done for the years 1986 and 1987. The petitioner, as it now appears, secured 49 marks out of 70, but in the viva voce test, he secured 11 marks. As the petitioner did not get the minimum 12 marks out of 30 at the interview, he was not promoted whereas those who secured minimum or more than the minimum marks came to be promoted by en order passed on 3-3-1988, The petitioner is challenging in this petition the said order of promotion, Annexure-2 to this petition.
2. What is submitted by the learned advocate for the petitioner is that allotment of 30 marks out of 100 for viva voce test was very excessive and on that ground alone the selection and promotions made on the basis thereof should be quashed. In support of this contention, he relied upon a decision of the Supreme Court in the case of Ashok Kumar Yadav v. State of Haryana AIR 1987 SC 454, more particularly upon the following observations made in paragraph 29 of the judgment :
“Now if the allocation, of such a high percentage of marks as 33.3% in case of ex-service officers and 22.2 % in case of other candidates, for the viva voce test is excessive as held by us, what should be the proper percentage of marks to be allocated for the viya voce test in both these cases……We would therefore direct that hereafter in case of selections to be made to the Haryana Civil Services(Exscutive Branc ) 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 should not exceed 12. 2% of the total marks taken into account for the purpose of selection. We 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 uniformity in the selection process throughout the country and the practice followed by the Union Public Service Commission should be taken as a guide for the State Public Service Commissions to adopt and follow. The percentage of marks allocated for the viva voce test in case of ex-service officers may, for reasons we have already discussed, be somewhat higher than the percentage for the candidates belonging to the general category. We would, therefore, direct that in cease of ex-service officers having regard to the fact that they -would ordinarily be middle aged persons with personalities fully developed, the percentage of marks allocated for the viva voce test may be 25%………………”
It was emphasised that even in case of persons with developed perso- nalities the Supreme Court has considered 25% marks for viva voce test as the maximum. Now, that was a case where employment was sought to a public service on the basis of local competitive exam nation and the candidates were entering that service for the first time.
3. Mohinder Sain Garg v. State of Punjab, (1991) 1 SCC 662, was also relied upon. In that case, the Supreme Court has held that even if A. K. Yadav’s case may not in terms apply, it would be proper to lay down that if the percentage of marks in the viva voce test is more than 15% of the total marks, then that should be regarded as arbitrary and excessive. Therein, the Supreme Court has observed as under:
“………There could be no gainsaying 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 reasonable to have the percentage of viva voce marks more than 15% of the total marks in the selection of candidates fresh from college/school for public employment by direct recruitment where the rupes provide for a composite process of selection,- namely, written examination and interview.”
That was also a case of public employment by direct recruitment and that too from amongst candidates who were likely to be fresh from schools/colleges.
4. In Lila Dhar v. State of Rajasthan, AIR 1981 SC 1777, the Supreme Court has pointed out the usefulness of interview test in the following words :
“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 candidates’ overall intellectual and personal qualities. While a written examination has certain distinct advantages over the interview test, there are yet no written tests which can evaluate a candidate’s initiative, alertness resourcefulness, dependableness, co-operativeness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others, adaptability, judgment, ability to make decision, 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.”
As to what weight should be attached, to the written examination and oral test when both are considered necessary for proper selection, the Supreme Court has observed as under:
“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 perforce 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 Pariakaruopan v. State of Tamil Nadu (AIR 1971 SC 2303;, Ajay Hasia v. Khalid Mujib ,Sehravardi (AIR 1981 SC 437 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.”
The Supreme Court then observed that there cannot be any rule of thumb regarding the precise weight to be given and 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 a host of other factors. The Supreme Court did not consider allocation of 33% of the total marks for the interview test as bad for selection of Munsits in Rajasthan. The view taken in Lila Dhar’s case has been reiterated by the Supreme Cout in Mahmood Alam Tariq v. State of Rajasthan, (AIR 1988 SC 1451) Therefore, it cannot be said that the Supreme Court has laid down an inflexible rule that if more than 15% marks are allotted to viva voce test, then the selection based upon such a test should be regarded as bad. As regards allocation of 30 marks, the same cannot be regarded as arbitrary or unreasonable as the selection was to be made for promotion to a higher post from amongst those clerks who were already in service for six years and the post to which they ware to be promoted were that of Field Officer. The first contention raised on behalf of the petitioner, therefore, must be rejected.
5. It was next urged that in the absence of rules providing minimum qualifying marks in the viva voce test, the selection committee could not have fixed minimum qualifying marks and, therefore, also the selection made on the basis of that criteria should be regarded as bad. In support of this contention, the learned advocate relied upon a decision of the Supreme Court- in Durgacharan Mishra v. State of Orissa, AIR 1987 SC 2267. In that case, the Supreme Court held that fixation of minimum marks by the Public Service Commission on the advice of a sitting Judge of the High Court who was present at the time of the viva voce test was bad as that was contrary to the statutory rules framed under Art. 309 of the Constitution. The Supreme Court, interpreting Rules 16, 17,18 and 19 of the Orissa Judicial Service Rules, 1964, came to the conclusion that it was not the requirement of the Rules that the candidites should obtain certain minimum marks at the viva voce test. For that reason, fixation of minimum qualifying marks at the viva voce test was considered to be contrary to the statutory rules.
6. In the present case, it is an admitted position that there are no statutory rules laying down how promotion to the post of Field Supervisor is to be made from Clerk cum- Cashiers- The Board of Directors of the Bank had. therefore, at its meeting held on 25-8 1987 decided certain minimum qualifying marks with respect to the appraisal of performance. The Board also appointed a Selection Committee for the purpose of holding the viva voce test. The Selection Committee, before interviewing the eligible candidates, had decided to recommend the names of only those who secured a minimum of 40% of the total marks at the interview test. Far from being considered as illegal or arbitrary the said action of the selection committee has to be regarded as fair In Mahmood Tariq’s case, the Supreme Court upheld such fixation of minimum qualifying marks by the Rajasthan Public Service Commission.
7. It was. however, submitted by the learned advocate for the petitioner that this Court in Karunakar Sethi v. Baitarani Gramya Bank (OJC No. 4628 of 1990 disposed of on 3-3-1993) has held that the requirement of obtaining minimum 12 marks out of 30 is bad Therefore, we should in this case also hold that the selection made on the basis of the said criteria is vitiated. In the case, the decision of the Supreme Court in Mahmood Tariq was not considered. Moreover, for some. reasons, this Court did not think it fit to accept the assessment of marks as correct and held that because of that requirement, the petitioner could not have been denied the benefit of the reserved post. No reason was pointed out in that case as to why 12 marks were fixed as the minimum at the interview test. As we have pointed out earlier, in this case 12 marks, i.e., 40%, was fixed because that was also the standard fixed for the written test. It is not the case of the petitioner that the assessment of marks at the oral interview was not properly done. Therefore, in our opinion, the said decision cannot be of any help to the petitioner in this case. It may be further stated that the petitioner did not raise any objection at an earlier stage even though he knew that 30 marks were allotted for the viva voce test. He took a chance and now when he has failed to secure the minimum qualifying marks he is complaining about comparatively high allocation of marks for the viva voce test.
8. As we do not find any substance in this contention also, it is rejected.
9. In the result, we dismiss this petition. No order as to costs.
P.C. Naik, J.
10. I agree.