CASE NO.:
Appeal (civil) 4793-4802 of 1999
PETITIONER:
JASVINDER SINGH AND OTHERS ETC.ETC.
RESPONDENT:
STATE OF J AND K AND OTHERS
DATE OF JUDGMENT: 20/12/2002
BENCH:
DORAISWAMY RAJU & SHIVARAJ V. PATIL.
JUDGMENT
JUDGMENT
D. RAJU, J.
The above appeals have been filed against the common
Judgment dated 29th May, 1998 in a batch of appeals - LPA
(SW) 85 of 1997 etc. and those in which subsequently the
same was followed of a Division Bench of the High Court of
Jammu and Kashmir at Jammu whereunder, while allowing the
appeals, the Division Bench set aside the judgment of the
learned Single Judge and ordered the dismissal of the writ
petitions.
The subject matter in issue pertains to a challenge
to the selections made for the appointment of Sub-Inspectors
of Police - Executive/Armed Police in the State.
Applications were invited by Public notices dated 20th
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August, 1991, fixing the last date for receipt from all
eligible persons, indicating the required qualifications,
therefor. Candidates, it was proclaimed will have to undergo
(a) physical measurement test; (b) outdoor test; (c)
written test and (d) viva voce test. After conducting all
such tests the list of candidates approved for appointment
was said to have been published on 26-11-1992, consisting of
about 110 names and the same was subject to verification of
character and antecedents, medical fitness and fulfilment of
other formalities. Subsequently, it appears that out of 18
selected candidates summoned for verification twelve
candidates presented themselves and out them nine were found
to be in shortage of chest measurements and one found to be
of under height and therefore excluded from the list of
candidates to be appointed.
The appellants who filed writ petitions participated
in the selections but could not be selected for one or the
other reason and aggrieved they filed writ petitions in the
High Court challenging the selections. The learned Single
Judge who heard the writ petitions found and in the course of
the order specifically recorded that the controversy in the
cases stood narrowed down to two grounds viz. (i) the marks
allocated for viva-voce at 25 in comparison to the marks
earmarked for written test at 100, worked out to 20 % and the
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same being in excess of 12 1/2 % stood vitiated on account of
the law declared by this Court in the decision reported in :
Ashok Kumar Yadav and others vs. State of Haryana and
others; AIR 1987 SC 454 = 1985 (4) SCC 417 and therefore the
selections stood vitiated and are liable to be set aside and
(ii) that the marks in viva-voce was not properly awarded and
that not only there was a farce of an interview of every
candidate within few minutes but questions put were also
irrelevant and not related to the selection for the posts in
question. Over ruling the objections of the respondent State
and authorities of the Department, the learned Single Judge
held (a) that the marks allocated at 25 for the viva-voce was
against the law declared by this Court in Ashok Kumar Yadav’s
case (supra) and therefore stood vitiated and (b) on going
through the records it was found that the marks in the
interview seem to have been awarded with a conscious effort
to bring up candidates who figured with low marks in the
written test by awarding more marks in the viva-voce and low
marks awarded to those who secured higher percentage in
written test. Therefore the learned Single Judge held that
there is no option but to believe that the marks were given
in the viva-voce for extraneous consideration. Thereupon the
learned Single Judge expressed the view that he was not
inclined to quash the appointment of selected candidates
which may upset the whole department and operate harshly upon
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the selected candidates, and instead directed that all those
writ petitioners falling in general category who had obtained
56 marks or above in the written examination shall be
entitled for appointment as Sub-Inspectors of Police, since
the last candidate already selected and appointed in general
category had obtained 56 marks in the Written Examination.
On further appeal before the Division Bench, the
learned Judges on an analysis of the case law on the subject,
came to the conclusion that the Prescription of 25 marks for
viva-voce test in the present case cannot held to be not in
consonance with the judicial precedents. It was also
observed that the decision in Ashok Kumar Yadav’s case
(supra) has been noticed in subsequent judgments of this
Court wherein even higher percentage viz., upto 50 % was also
upheld and it would not be apt for the Court to deny the
right/power of the Government, in this regard. Consequently,
it was held that prescription of 25 marks for viva-voce in
the case did not suffer from the vice of arbitrariness.
Therefore, the judgment of the learned Single Judge has been
set aside and the writ petitions challenging the selection
were dismissed.
Heard the learned counsel appearing on either side,
and the counsel for some of the respondents sailing with the
appellants.
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This Court in Ashok Kumar Yadav’s case (supra)
observed that both written examination and viva voce test are
accepted as essential features of proper selection and that
there cannot be any hard and fast rule regarding the precise
weight to be given to the viva-voce test as against written
examination, which may vary from service to service according
to the requirement of that particular service, the minimum
qualifications prescribed, the age group from which selection
is to be made, the body to which the task of holding the
vivavoce is entrusted and a host of other factors. It was
also observed that all such are essentially matters for
determination by experts and it would not be right for the
Court to pronounce upon it unless "exaggerated weight has
been given with proven or obvious oblique motives." Thereupon
while adjudging the issue as to whether the allocation of as
high a percentage of marks as 33.3 % in case of ex-service
officers and 22.2 % in case of other candidates, this Court
adverted to the pattern of marks and found that the highest
marks obtained in the written examination by ex-officers
worked out only to a ratio of 22.2% as against the marks
obtained in the viva-voce worked out to an inordinately high
percentage of 76. What was considered to be the vitiating
factor was the spread of marks in the viva voce test being
enormously large compared to the spread of marks in the
written examination leaving room with greater laxity at their
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command and for arbitrary exercise of the same with so higher
percentage of 33.3 % for viva voce. So far as candidates
other than ex-service members, viz., the general category are
concerned, the percentage of 22.2 % was considered to be very
high tested by the same standards. Proceeding further as to
the question what should be the proper percentage of marks to
be allocated for the viva voce test in such cases it was
observed that marks allocated for the viva voce test shall
not exceed 12.2 % of the total marks taken into account for
the purpose of selection. This Court finally observed there
in as follows: "We would therefore direct that in case
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. Whatever selections are made by
the Haryana Public Service Commission in the future shall be
on the basis that the marks allocated for the viva voce test
shall not exceed 12.2 % in the case of candidates belonging
to the general category and 25 % in the case of ex-service
officers."
In Mahmood Alam Tariq and others vs. State of
Rajasthan and others ( AIR 1988 SC 1451) prescription of 33 %
as minimum qualifying marks of 60 out of total 180 marks set
apart for viva voce examination does not by itself incur any
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constitutional infirmity. In Manjit Singh, UDC and others
vs. Employees State Insurance Corporation and another (1990
(2) SCC 367) this Court held that in the absence of any
prescription of qualifying marks for the interview test the
same 40 % as applicable for written examination was
reasonable. In Anzar Ahmed vs. State of Bihar and others
(1994 (1) SCC 150) this Court exhaustively reviewed the
entire case law on the subject including the one in Ashok
Kumar Yadav’s case (supra) and upheld a selection method
which involved allocation of 50 % marks for academic
performance and 50 marks for the interview. The very
observations in Ashok Kumar Yadav’s case (supra) would go to
show that there cannot be any hard and fast rule of universal
application for allocating the marks for viva voce viz-a-viz
the marks for written examination and consequently the
percentage indicated therein alone cannot be the touchstone
in all cases. What ultimately required to be ensured is as
to whether the allocation, as such is with an oblique
intention and whether it is so arbitrary as capable of being
abused and misused in its exercise. Judged from the above
the Division Bench could not be held to have committed any
error in sustaining the allocation of 25 marks (20 %) for
viva voce as against 100 marks for written examination for
selection of candidates in the present case. The learned
Single Judge, in our view, has adopted a superficial exercise
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and proceeded on a misunderstanding of the real ratio of the
decision in Ashok Kumar Yadav’s case (supra). Further, the
learned Single Judge appears to have applied the ultimate
decision in the said case, to the case on hand drawing
certain inferences on mere assumptions and surmises or some
remote possibilities, without any proper or actual foundation
or basis, therefor.
The learned Single Judge also seem to have been very
much carried away by few instances noticed by him as to the
award of higher percentage of marks in viva voce to those who
got lower marks in written test as compared to some who
scored higher marks in written examination but could not get
as much higher marks in viva voce. Picking up a negligible
few instances cannot provide the basis for either striking
down the method of selection or the selections ultimately
made. There is no guarantee that a person who fared well in
written test will or should be presumed to have fared well in
viva voce test also and the Expert opinion about as well as
experience in viva voce does not lend credence to any such
general assumptions, in all circumstances and for all
eventualities. That apart the variation of written test
marks of those who were found to have been awarded higher
marks in viva voce viz-a-viz those who secured higher marks
in the written test but not so in the viva voce cannot be
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said to be so much (varying from five marks and at any rate
below even 10) as to warrant any proof of inherent vice in
the very system of selection or the actual selection in the
case. There was no specific allegation of any mala fides or
bias against the Board constituted for selection or any one
in the Board nor any such plea could be said to have been
substantiated in this case. The observation by the learned
Single Judge that there was a conscious effort made for
bringing some candidates within the selection zone cannot be
said to be justified from the mere fact of certain instances
noticed by him on any general principle or even on the merits
of those factual instances alone. Further, the course
adopted by the learned Single Judge in directing selection
from general candidates all those who have obtained 56 marks
in written examination cannot be justified at all and it is
not given to the Court to alter the very method of selection
and totally dispense with viva voce in respect of a section
alone of the candidates, for purposes of selection. On a
careful and overall consideration of the judgments of the
learned Single Judge and that of the Division Bench, we are
of the view that the decision of the learned Single Judge
cannot be sustained for the reasons assigned by him and the
decision of the Division Bench cannot be considered to
suffer any such serious infirmity in law to call for our
interference.
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For all the reasons stated above, the appeals fail
and shall stand dismissed but with no costs.