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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
:ORDER:
S.B. Civil Writ Petition No.3320/2006.
(Bhawani Singh Charan Vs. State of Rajasthan & Others)
DATE OF ORDER : September 23rd, 2008
PRESENT
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
____________________________________
Mr. Kamal Dave for the petitioner.
Mr. Tarun Joshi and Mr. R.S. Choudhary, Advocates
for the respondents.
Reportable : BY THE COURT :
In this writ petition, the petitioner has prayed for the
relief that the respondents may be directed to place him at
a merit position higher than that of respondent No.3 and
offer appointment to the petitioner as per his preferences
for the post.
According to the facts narrated by the petitioner,
being eligible to compete for the Rajasthan State and
Subordinate Services, he applied for the competitive
examination in pursuance of the advertisement dated
06.04.2003. The said notification was published in the
Employment News dated 15.04.2003. In all, 493
vacancies were advertised for which applications were
called from the eligible candidates for direct recruitment to
the Rajasthan State and Subordinate Services. According
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to the petitioner, he is science graduate and, being as such
eligible as per his qualification, he applied to appear at the
said examination conducted by the Rajasthan Public
Service Commission.
Aforesaid combined competitive examination was
conducted as per the scheme under the Rajasthan State &
Subordinate Services (Direct Recruitment by Combined
Competitive Examination) Rules, 1999 (in short, to be
called hereinafter as “the Rules of 1999”). According to
the petitioner, as per Rule 4 of the Rules of 1999, it is
provided that the combined competitive examination is to
be conducted by the Commission and the said
examination, under the scheme, consists of three-tier
selection process i.e., Preliminary Examination, Main
Examination and viva voce. The candidate is required to
obtain certain percentage of marks in the Preliminary
Examination to become eligible for appearing at the Main
Examination. That is, however, for the purpose of short-
listing only and marks obtained at the preliminary
examination are not taken into consideration for
determining the final order of merit. As per Rule 15, in
the Main Examination candidates 15 times in number of
the number of vacancies to be filled up in the year in the
various services are allowed to appear. Candidate who
obtains such qualifying marks in the Main Examination as
may be fixed by the Commission shall be entitled to be
called for the interview and marks so awarded at the
interview are to be added in the marks obtained at the
Main Examination. In that way, the final merit list is to be
prepared for recruitment to various services.
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Having cleared the preliminary examination, the
petitioner appeared at the main examination and was also
called for interview. The petitioner was interviewed on
06.07.2005. The Commission declared the final select list
in the order of merit. As per the petitioner, 1073
candidates were included in the final select list in the order
of merit.
The respondent Commission after preparing the final
select list recommended the said list to the Government
after the same being published for general information.
Rule 17 of the Rules of 1999 provides for recommendation
by the Commission of the candidates whose names are
included in the final select list after completion of the
process of recruitment through written examination and
interview. As per Rule 17 of the Rules of 1999, in order to
meet situation in which if two or more of such candidates
obtain equal marks in the aggregate the Commission shall
arrange their names in the order of merit on the basis of
their general suitability for the service. The said rule,
however, does not incorporate any explanation of the term
“general suitability”. The petitioner contends that he was
found suitable after completion of the process of selection
and his name was included at S.No.473 with Roll
No.280631, being in the category OBC.
It is the case of the petitioner that he stood in merit
as aforesaid in view of the fact that he obtained 840 marks
out of 1460 marks in aggregate, having secured 750
marks out of 1300 marks in the written examination and
87 marks out of 160 marks in the interview. Standing at
equal merit in view of the aggregate marks, another
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candidate respondent No.3 Raghuveer Singh was placed at
S.No.471 with Roll No.324638 who also belonged to the
category OBC. Grievance of the petitioner is that
respondent No.3 Raghuveer Singh secured exactly same
aggregate marks as petitioner but respondent No.3 was
offered appointment to the post of Cooperative Inspector
on the ground that his name was placed above the name
of the petitioner because although in the written
examination he secured 740 marks but in the interview he
was awarded 100 marks whereas the petitioner was
awarded 87 marks in the interview although in the written
examination the petitioner obtained more marks than
respondent No.3. The date of birth of respondent No.3 is
20.04.1979 whereas date of birth of the petitioner is
24.02.1976 and he was 30 years of age whereas
respondent No.3 was 27 years of age at the relevant time.
Both the candidates have secured 840 aggregate marks
out of total 1460 marks.
In the writ petition, the petitioner has stated that he
is older than respondent No.3 and has secured more marks
in the written examination than respondent No.3,
therefore, he was to be given the preference over
respondent No.3, however, the State respondents have
offered appointment to respondent No.3 knowingly well
that he has secured lesser marks than the petitioner in the
written examination although his aggregate marks are
equal to the marks obtained by the petitioner and such
aggregate marks were obtained by respondent No.3 due to
the fact that he was given 100 marks out of 160 marks in
the interview. According to the petitioner, he was
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informed verbally by the State respondents that as per
criteria prescribed under Rule 17 of the Rules of 1999,
“general suitability” is required to be seen in such
circumstance for the purpose of recommending the name
of the candidate who has secured equal marks and for
general suitability marks obtained at viva voce have been
taken into consideration, therefore, name of respondent
No.3 who has secured more marks than the petitioner in
viva voce was recommended and he was offered
appointment by the State Government as per the
recommendation made by the Commission.
Learned counsel for the petitioner vehemently
argued that such criteria adopted for the State and
Subordinate Services by the State respondents is totally
arbitrary and illegal being discriminatory because in such a
situation, in most of the services, name of the older
candidate is required to be recommended, therefore, the
date of birth is found to be the valid criteria, then, different
criteria cannot be adopted for recruitment to the Rajasthan
State & Subordinate Services. It is vehemently contended
by learned counsel for the petitioner that obviously general
performance can be seen on the basis of marks obtained in
the written examination whereas the respondent
Commission has adopted arbitrary and discriminatory
criteria whereby they have considered general suitability
on the basis of marks obtained in the viva voce test. At
the time of sending the names to the State Government, if
two or more candidates have secured equal marks then
the respondent Commission ought to have given
preference to the older candidate and cannot take into
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account the marks obtained in the viva voce test which is
arbitrary because the candidate who is older vis-à-vis the
other candidate who has secured equal marks can lose the
opportunity to undergo further selection in view of the
prescribed upper age limit, therefore, the basis for
adopting such criteria should be the factum of date of
birth; but, arbitrarily the State respondents have not
adopted the said criteria and followed a different criteria by
which they are considering the candidate who has secured
more marks in the interview in the event of securing equal
aggregate marks by two or more candidates. According
to learned counsel for the petitioner, such criteria is
erroneous and illegal because in all other services like
selection for the posts of Teacher the respondent
Commission is adopting the criteria of sending names of
older candidate in the event of securing equal marks by
two or more candidates whereas, in the present case, the
respondents have assessed the general suitability of
respondent No.3 on the basis of marks obtained in the viva
voce test. Learned counsel for the petitioner emphatically
submitted that such criteria gives arbitrary and unbridled
power to the Selection Committee to select the candidate
of their own choice and this proposition of law has been
deprecated by the Supreme Court in so many cases.
Learned counsel for the petitioner invited attention of
the Court towards the judgment in the case of Mohinder
Sain Garg Vs. State of Punjab, reported in (1991) 1 SCC
662, in which it has been held that in the case of
composite process of selection comprising of written
examination and interview of the candidates fresh from
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schools and colleges for public employment, allocation of
more than 15 per cent of the total marks for viva voce test
would be unreasonable and excessive and violative of
Article 14 of the Constitution of India.
Likewise, referring to another judgment of the
Supreme Court in the case of Vikram Singh & Another Vs.
Subordinate Services Selection Board Haryana & Others,
reported in (1991) 1 SCC 686, learned counsel for the
petitioner submitted that the said judgment is based upon
number of earlier judgments of the apex Court and all
those judgments were considered by the Supreme Court,
more specifically the judgment in the case of Ashok Kumar
Yadav Vs. State of Haryana, reported in (1985) 4 SCC 417.
The apex Court, in that judgment, categorically observed
that where there is a composite test consisting of a written
examination followed by a viva voce test, the number of
candidates to be called for interview in order of the marks
obtained in the written examination, should not exceed
twice or at the highest, thrice the number of vacancies to
be filled. If a viva voce test is to be carried out in a
thorough and scientific manner, as it must be in order to
arrive at a fair and satisfactory evaluation of the
personality of a candidate, the interview must take
anything between 10 to 30 minutes. In the
circumstances, it would be impossible to carry out a
satisfactory viva voce test if a large unmanageable number
of candidates are to be interviewed. The interviews would
then tend to be casual, superficial and sloppy and the
assessment made at such interviews would not correctly
effect the true measure of the personality of the candidate.
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Moreover, such a course would widen the area of
arbitrariness, for even a candidate who is very much lower
down in the list on the basis of marks obtained in the
written examination, can come within the range of
selection, if he is awarded unduly high marks at the viva
voce examination.
Learned counsel for the petitioner while inviting
attention towards the facts of this case submits that
admittedly respondent No.3 who is placed at merit position
of 471 secured 840 aggregate marks and has been offered
appointment whereas the petitioner also secured 840
aggregate marks but he has not been placed above
respondent No.3 on the ground that out of 840 marks
respondent No.3 secured more marks in viva voce test
than the petitioner; meaning thereby, so called criteria
adopted by the Commission is based upon the marks
obtained in interview in the event of two or more
candidates securing equal aggregate marks, however, the
respondents themselves have admitted in their reply that
in the given situation where the candidates secure equal
marks in aggregate as well as in interview, then the
candidate older in age shall be given preference, therefore,
in this view of the matter, on the one hand, the
Commission is accepting that petitioner has secured more
marks in the written examination and as per age he is
older than respondent No.3 and in the event two or more
candidates secure equal marks in aggregate as well as
interview, then, the candidate older in age shall be given
preference. But, on the other hand, respondent No.3 has
been placed above the petitioner in the merit list and he
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has been offered appointment whereas the petitioner has
been denied the same in contravention of the aforesaid
adjudication made by the apex Court.
Per contra, learned counsel for the Commission
vehement argued that as per the judgment in the case of
K.H. Siraj Vs. High Court of Kerala & Others, reported in
(2006) 6 SCC 395, it is held that Public Service
Commission or any other recruitment authority is justified
to prepare the criteria for adjudging the suitability of the
candidates. In this case, as per the respondents, both the
petitioner and respondent No.3 secured 840 marks out of
1460 marks but the petitioner though older than
respondent No.3 has secured less marks in interview i.e.,
87 marks out of 160 marks, therefore, on the basis of
higher marks obtained in the interview, name of
respondent No.3 who was at S.No.471 in the merit list
was recommended for appointment although he is younger
than the petitioner. In this view of the matter, as per
learned counsel for the respondents, the criteria adopted is
not new and has been made applicable by the respondent
Commission since long back which is in existence,
therefore, the petitioner cannot claim any right for
including his name above the name of respondent No.3
because the criteria adopted by the respondents is justified
and aimed at securing the object of selecting more
competent administrative officer.
Learned counsel for the respondents vehemently
argued that the administrative post cannot be equated with
the posts of Teacher. For the purpose of appointment on
administrative post, it is always open to the respondent
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Commission to prepare the criteria to select most suitable
person in the administrative side whereas for the post of
Teacher there is no provision for interview and merit is to
be assessed on the basis of the written examination only
and, in that even, the respondent Commission would
include the name of older person in the select-list in the
event of two or more candidates securing equal marks.
Therefore, the petitioner cannot claim any right of inclusion
of his name in the select-list in preference to respondent
No.3 on the basis of the argument that the Commission
has made applicable different criteria for other services
where only the written examination is prescribed.
Therefore, it can be said that the Commission rightly
assessed the suitability of respondent No.3 whereby he
was placed at a higher position than the petitioner in the
order of merit and the writ petition deserves to be
dismissed.
I have considered rival submissions made by both
the parties.
In this case, the selections were made on the basis
of competitive examination conducted by the respondent
Commission in accordance with Rule d15 of the Rajasthan
State & Subordinate Services (Direct Recruitment by
Combined Competitive Examination) Rules, 1999 which
provides for method of selection according to which the
candidates are required to appear in the preliminary
examination and, then, after passing the preliminary
examination if the candidate comes within the
consideration zone he is required to pass the main
examination and, thereafter, appear for the viva voce test.
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Admittedly, the petitioner and respondent No.3 both
appeared in the said examination being eligible. There is
no dispute with regard to eligibility of both the candidates.
However, detail of both the candidates is as below :
Bhawani Singh Raghuveer Singh
(Petition) (Res. No.3)
Marks in written test 753 740
Marks in Viva-Voce 87 100
Total Aggregate Marks 840 840
Date of Birth 24.02.1976 20.04.1979
Age 30 years 27 years
Qualification B.Sc.(64%) B.A.
The above detail clearly speaks that the petitioner
has secured higher marks in the main written examination
and respondent No.3 secured 740 marks i.e., less than
marks obtained by the petitioner in the written
examination.
According to the above facts, admittedly respondent
No.3 has secured 100 marks and the petitioners has
secured 87 marks in the viva voce test, therefore, on the
basis of so called criteria prepared by the Commission on
the ground that the post of State and Subordinate Services
is different than the post of Teacher and other services
and, in that view, for selecting more suitable person marks
obtained in the interview have been considered in the
event of two or more candidates securing equal aggregate
marks in the process of selection.
In my opinion, in the said event, as per criteria of
the Commission they are taking into consideration for the
purpose of assessing merit the marks obtained in the viva
voce test only which is not justifiable because the
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knowledge of the candidate can be assessed from the
written examination. In all the academic examinations
until securing the eligibility qualification, in the education
system, the educational institutions are even today
assessing the knowledge in respect of particular
qualification through the written examination and,
therefore, the significance of the written examination
cannot be lightly brushed aside. It is not the case of the
respondents that the viva voce test preponderantly carried
much weightage in the given recruitment as per the
scheme of the examination and, on the other hand, it is
admitted in the reply that if two or more candidates secure
equal aggregate marks then the candidate securing equal
aggregate marks then the candidate securing more marks
in the interview shall be given preference, and in a
situation where the candidates secure equal marks in
aggregate as well as in interview, then, the candidate older
in age shall be given preference. Thereby meaning that,
ultimately, in an enigmatic situation such as one in the
instant case, the respondent Commission has only evolved
the criteria to wriggle out from the situation and, truly, the
criteria is not based upon logistic approach. In the
circumstance, therefore, in my considered opinion, the
marks obtained at the written examination, under the
scheme of examination for the State & Subordinate
Services (Direct Recruitment by Combined Examination) as
it is, cannot be given lesser weightage in any event
because ultimately in the process the suitability of the
candidate is adjudged by his performance at the written
examination. Therefore, even according to the
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respondents, in a situation where the candidates secure
equal marks in aggregate as well as in interview, then, the
candidate older in age shall be given preference. The
conclusion is thus obviously based on equity and,
therefore, while not losing sight of the performance of a
candidate in the written examination, in such a situation,
recommendation of the name of the older person is the
proper criteria and unless specific ground is established for
deviating from the general rule the same must be adhered
to.
Moreover, any criteria which is totally based upon
the marks obtained in the viva voce test is neither fair nor
permissible in view of the apex Court pronouncement in
number of cases. In the case of Ashok Kumar Yadav,
(supra), the apex Court categorically laid down that even
where both written examination and viva voce test are
prescribed, ultimate selection should not be based upon
the viva voce test only. This proposition of law was
considered by the Hon’ble Supreme Court on the basis of
the fact that in the event of interviewing large number of
candidates, more often the exercise is formal and it is not
possible to assess the suitability of the candidates within
10 to 30 minutes. In the present case also, large number
of candidates were interviewed and, admittedly, the
duration of interview was in between 10 to 30 minutes. In
this view of the matter, the criteria adopted by the
Commission, in the peculiar facts and circumstances of the
case, is arbitrary and illegal. The contention of the
respondents cannot be accepted that the criteria is not
under challenge in this writ petition because the
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respondent has not published the criteria in the
advertisement and, straight away, it is followed at the time
of the selection process. Therefore, the petitioner cannot
be denied his claim only on the ground that he has secured
less marks in the viva voce test than respondent No.3. In
this view of the matter, the denial of the claim of the
petitioner for selection is totally arbitrary and violative of
Articles 14, 16 and 21 of the Constitution of India and, so
also, claim of the petitioner is on the better footing then
respondent No.3 because, admittedly he has secured
higher marks in the written examination, therefore, he is
more suitable than respondent No.3.
As a result, this writ petition is allowed. The
respondent Rajasthan Public Service Commission is
directed to recommend the name of the petitioner to the
State Government while treating the petitioner above
respondent No.3 in the merit list. Upon receiving the
recommendation by the State Government from the
respondent Commission, the petitioner shall be accorded
appointment as per his merit on the post for which he is
entitled and the petitioner shall be granted all
consequential benefits from the date such appointment
was provided to respondent No.3. However, such benefits
as seniority and increments etc. shall be granted to the
petitioner notionally and the petitioner shall not be entitled
to any arrears of pay till the date of this judgment/order.
(Gopal Krishan Vyas) J.
Ojha, a.