TMI Blog1988 (5) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 grad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 ments of personality. It was pointed out that though the pay-scale of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection-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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 In France, until the Revolution, almost every office, central or local, excepting the dozen or so of the highest offices were attainable only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 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 thin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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