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TMI Blog2010 (5) TMI 928X X X X Extracts X X X X X X X X Extracts X X X X ..... sued by Bihar Public Service Commission (for short, `the Commission') for appointment of Civil Judges (Junior Division). After being declared successful in the written examination, the Petitioner was interviewed on 7.8.2007. However, his name did not figure in the merit list prepared by the Commission. 3. After nine months, the Petitioner filed writ petition questioning the constitutionality of Appendix- C of the Bihar Civil Service (Judicial Branch) (Recruitment) Rules, 1955 (for short, `the Rules') on the ground that the marks prescribed for viva-voce test were excessive and contrary to the law laid down by this Court in Ashok Kumar Yadav v. State of Haryana (1985) 4 SCC 417, Mohinder Sen Garg v. State of Punjab: (1991) 1 SCC 662, Ashok alias Somanna Gowda v. State of Karnataka (1992) 1 SCC 28, Raj Kumar and Ors. v. Shakti Raj and Ors. (1997) 9 SCC 527 and Vijay Syal v. State of Punjab and Ors. (2003) 9 SCC 401. 4. In the counter filed on behalf of the State Government, an objection was raised to the locus standi of the Petitioner by asserting that after having participated in the process of selection, he is estopped from questioning the marks prescribed for viva voce t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt way back in the year 1977 that any vacancy having remained unfilled due to non-joining of the selected candidates will be carried forwarded to the next year. 6. Shri Jayant Bhushan, learned senior Counsel argued that the High Court committed a serious error in denying relief to the Petitioner by invoking the principle of estoppel/waiver ignoring that he had challenged the constitutionality of the rule by which excessive marks have been prescribed for viva voce test and also questioned the selection made by the Commission on the ground of violation of his fundamental right to equality guaranteed under Articles 14 and 16 of the Constitution. Learned Counsel emphasized that the rule of estoppel, waiver and acquiescence cannot be applied in the cases involving violation of the rights guaranteed under Part III of the Constitution. He then submitted that the marks prescribed for viva voce test are highly excessive and contrary to the law laid down by this Court in Ashok Kumar Yadav v. State of Haryana (supra). 7. Learned Counsel for the Respondents argued that after having taken a chance to be selected on the basis of criteria specified in Rule 14 read with Appendix-C and the advert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered by this Court in several cases including those upon which reliance has been placed by Learned Counsel for the Petitioner. Although, no straitjacket formula has been judicially evolved for determining whether the prescription of particular percentage of marks for viva voce test/interview introduces an element of arbitrariness in the process of selection or gives unbridled power to the recruiting authority/agency to select less meritorious candidates, by and large, the courts have not found any Constitutional infirmity in prescribing of higher percentage of marks for viva voce test/interview for recruitment to judicial services, administrative services and the like. 11. In Lila Dhar v. State of Rajasthan and Ors. (1981) 4 SCC 159, a three-Judge Bench rejected the Petitioner's challenge to the recruitment to Rajasthan Judicial Service on the ground prescribed for interview (25%) were highly excessive and observed: Thus, the written examination assesses 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 features of proper selection, the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the High Court of Rajasthan and the Rajasthan Public Service Commission. The High Court may be expected to know the precise requirements of the judicial service of the State and the calibre of the available source- material, while the Public Service Commission is an expert body thoroughly conversant with recruitment policies and selection methods. Both the High Court and the Public Service Commission are independent bodies, outside executive control, occupying special positions and enjoying special status under the Constitution. Neither is an outside agency. Both are well-acquainted with the particular needs of their State and the people. If the Governor, in consultation with the High Court and the Public Service Commission of the State makes rules stipulating seventy-five per cent of the marks for the written examination and twenty-five per cent for the interview-test, on what basis can a court say that twenty-five per cent for the interview-test is on the high side? It must not also be forgotten that the interview test is generally conducted and was, in the present case, conducted by a body consisting of a Judge of the High Court, the Chairman and a Member of the Public Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to diminish it if not eliminate the same the percentage needs to be reduced. The Constitution Bench made observation that marks for viva voce test should not exceed 12.2 per cent. In spite of these observations the Constitution Bench did not interfere or strike down the selection instead it directed the Commission to give one more opportunity to the aggrieved candidates to appear at the competitive examination. In the instant case there has been no allegation of mala fides or arbitrariness against the Commission which held the viva voce test. 13. In Mehmood Alam Tariq and others v. State of Rajasthan and Ors.: (1988) 3 SCC 241, the Court distinguished the earlier Judgments in Ajay Hasia v. Khalid Mujib Sehravardi (1981) 1 SCC 722, Ashok Kumar Yadav v. State of Haryana (1985) 4 SCC 417, relied upon Lila Dhar v. State of Rajasthan and Ors. (supra) and held that prescription of 33% marks for interview for recruitment to the Rajasthan State and Services (Direct Recruitment by Combined Competitive Examinations) Rules, 1962, Rajasthan Service Rules, 1954, Rajasthan Police Service Rules, 1954, Rajasthan Forest Service Rules, Rajasthan Forest Subordinate Service Rules, 1963 is not violat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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