LPA/1390/2005 1 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1390 of 2005 In SPECIAL CIVIL APPLICATION No. 9730 of 2000 With LETTERS PATENT APPEAL No. 60 of 2006 In SPECIAL CIVIL APPLICATION No. 4461 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE K.M.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= VASANT KAMLESH RAMNIKLAL - Appellant(s) Versus GUJARAT STATE PUBLIC SERVICE COMMISSION & 6 - Respondent(s) ========================================================= Appearance : PARTY-IN-PERSON for Appellant(s) : 1, MR SK PATEL for Respondent(s) : 1, MS MITA PANCHAL AGP for Respondent(s) : 2, MR PARESH UPADHYAY for Respondent(s) : 3, RULE SERVED BY DS for Respondent(s) : 4, RULE SERVED for Respondent(s) : 5, MR JV BHAIRAVIA for Respondent(s) : 6, DS AFF.NOT FILED (R) for Respondent(s) : 7, ========================================================= LPA/1390/2005 2 JUDGMENT CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE K.M.MEHTA Date : 31/08/2006 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE M.S.SHAH) Though the petitions were argued before the learned Single Judge on a wider canvass, the arguments urged on behalf of the appellants before us are in a narrow compass. The controversy in these appeals revolves around prescription of minimum qualifying marks at the viva-voce test for appointment to Gujarat Engineering Services (Class-I and Class-II), particularly whether such prescription can be made after the viva-voce test is over and after the Public Service Commission gets the details of the marks at the written test and the marks at the viva-voce test. 2. Both these appeals are directed against the common judgment dated 31.8.2005 passed by the learned Single Judge in three petitions. Since the appeals involve common questions of law, with the consent of the learned counsel for the parties as well as the appellant in LPA No.1390 of 2005, the appeals have been heard together and are being disposed of by this common judgment. For the sake of convenience, here is the index to the judgment. LPA/1390/2005 3 JUDGMENT Facts Para 3 Proceedings before the learned Single Judge Paras 4 and 5 Commission's power to fix minimum qualifying marks at viva-voce test Paras 7 to 9 Focus of controversy Paras 10 and 11 Discussion – Contention (i) Paras 12 to 14 -Contention(ii)major contention Paras 15 to 24 Moulding the reliefs Paras 25 to 27 FACTS 3.0 The petitions giving rise to these appeals were filed in the following factual background :- 3.1 By advertisement dated 1.2.1996 (Annexure-C to the original petition), the Gujarat Public Service Commission (hereinafter referred to as “the GPSC” or “the Commission”) invited applications for combined competitive examination for appointment in Gujarat Engineering Services (Class-I and Class-II) for the following posts:- Name of the post Total No. of posts Reserved for SC ST SEBC Executive Engineer (Civil) Class-I 10 01 02 02 Dy. Executive Engineer (Civil) Class-II 11 02 03 - LPA/1390/2005 4 JUDGMENT 3.2 Pursuant to the said advertisement, the appellants and others had applied. The appellants appeared at the competitive examination held by the Commission. Mr Vasant KR (appellant in LPA No.1390 of 2005) had applied in the open merit category. Mr Atul D Parmar (appellant in LPA No.60 of 2006) had applied in the category of Scheduled Caste candidates. The GPSC conducted written test in nine papers with 900 marks. Since the number of open merit candidates to be selected and appointed in Class-I and Class-II services was 11 (21 total less 10 reserved), the GPSC called 33 candidates for the common viva-voce test. Looking to the marks obtained by the candidates at the written test, the GPSC prescribed the following standard of qualifying marks at the written examination for the purpose of being called for the viva-voce test:- WRITTEN EXAMINATION (TOTAL 900 MARKS) Category Qualifying Percentage Marks -------- ---------- ---------- General 438 48.66 SEBC 421 46.77 SC 392 43.55 ST 173 15.22 Since both the appellants herein had obtained more than the qualifying marks for their respective categories, they were called for the viva- voce test. Mr Vasant KR had obtained 458 out of 900 marks. Therefore, he was called for viva-voce for the LPA/1390/2005 5 JUDGMENT open merit category. Mr Atul Parmar (SC) had obtained 409 marks and, therefore, he was called for viva-voce for the Scheduled Caste category. 3.3 The common viva-voce test for Class-I Engineering Service and Class-II Engineering Service was conducted in September 1999 by the following Committee:- 1. Major Dr Pundrik Raval Chairman 2. Shri Pravinsingh Chavda Member 3. Dr. Prabudas Patel Member 4. Shri PC Purbiya Govt. Nominee Chief Engineer 5. Shri SS Rathore, Advisor Spl. Secretary and Chief Engineer As per the Examination Rules, maximum 125 marks were allotted for the viva-voce test. 3.4 On 11.8.2000, the Commission decided to prescribe the following minimum qualifying marks at the viva-voce test/ oral interview out of maximum 125 marks VIVA-VOCE TEST (TOTAL 125 MARKS) Category Qualifying Percentage Marks -------- ---------- ---------- General 35 28.0 SEBC 27 21.6 SC 27 21.6 LPA/1390/2005 6 JUDGMENT ST 15 12.0 On 18.8.2000 the GPSC declared the results for the above competitive examination for Gujarat Engineering Services (Class-I and Class-II) and sent the Select List to the State Government on 19.8.2000. The State Government issued appointment orders in April/June 2001. 3.5 The present two appellants as well as three other candidates who had obtained sufficiently high marks in the written test and were called for the viva-voce test, but who did not secure the minimum qualifying marks at the viva-voce test filed three petitions being Special Civil Application Nos.9730 and 13249 of 2000 and 4461 of 2001 challenging the above selection and appointment mainly on the ground that the GPSC could not have prescribed the minimum qualifying marks for the viva-voce test and that the select list was required to be published on the basis of the aggregate of the marks at the written test and the marks at the viva-voce test. 3.6 The marks obtained by the candidates selected and appointed in Class-II service and the marks obtained by the other open merit candidates in the reckoning were as under:- LPA/1390/2005 7 JUDGMENT Sr. No. Seat No. Marks at Writte n Test Marks at Viva-voce in Sept. 1999 Total Marks at competit ive exam Placement in Select list made by PSC stipulating on 11.8.00 MQM at Viva 35/125 (i.e. 28%) (Viva held in Sept. 1999) A B C D E F Service/ Sr. No. in Select list 1. 170 514 55 569 Class-I/ 1 2. 724 495 57 552 Class-I/ 2 3. 630 501 47 548 Class-I/ 3 4. 275 498 47 545 Class-I/ 4 5. 59 505 35 540 Class-I/ 5 6. 868 492 40 532 Class-II/ 1 7. Jiginder Hariom (Or. Ptr.) 506 23 523 Not selected 8. RK Jain (Or. Ptr.) 512 12 524 Not selected 9. 297 463 50 513* 10. Narendra Arora (Or. Ptr.) 497 15 512 Not selected 11. 57 465 45 510 Class-II/ 2 12. 60 471 32 503 - 13. 807 456 45 501 Class-II/ 3 14. 196 438 60 498 Class-II/ 4 15. 171 441 52 493 Class-II/ 5 16. 466 (appellant KR Vasant) 458 32 490 - 17. 224 451 35 486 Class-II/ 6 18. 392 438 46 484 [*candidate with seat No.297 (Pandya Jayesh Dayashanker) had applied for only Class-I post. Hence not recommended by GPSC for Class-II post] MQM = Minimum Qualifying Marks at Viva LPA/1390/2005 8 JUDGMENT 3.7 Similarly, the marks obtained by the Scheduled Caste category candidates in the reckoning were as under:- Sr. No. Name Theory Viva- voce Total Service/Sr.No. in Select List 1. Seat No.1418 (SC) 415 32 447 Class-I 2. Atul Parmar (SC) (Petitioner- Appellant) 409 25 434 Not Selected 3. Solanki AK (SC) 395 34 429 Class-II/ 1 4. Chauhan Ajay (SC) 394 29 423 Class-II/ 2 The marks obtained by the Scheduled Tribe category candidate selected and appointed in Class-II services were as under:- Sr. No. Name/Seat No. Theory Viva- voce Total Service/ Sr.No. In Select list 1. 1489 358 35 393 Class-I/ 1 2. 1469 357 18 375 Class-I/ 2 3. Patel RV (ST) 306 16 322 Class-II/1 None of the petitioner-appellants belongs to a Scheduled Tribe or to an SEBC category. PROCEEDINGS BEFORE THE LEARNED SINGLE JUDGE 4.1 The gravamen of the challenge raised by the appellants and other candidates who were declared to have failed at the viva-voce test was the contention LPA/1390/2005 9 JUDGMENT that in LV Ashara vs. Gujarat Public Service Commission, (1985) 2 SLJ 83, this Court had directed the GPSC and the State Government to ignore the prescription of minimum qualifying marks at the viva- voce test for Gujarat Engineering Services (Class-I and Class-II) conducted under the same Rules and this Court had issued a mandamus directing the GPSC to prepare the select list on the basis of the aggregate of the marks at the written test and the marks at the viva-voce test. It was also contended that the Special Leave Petition against the aforesaid decision of this Court was dismissed by the Hon'ble Supreme Court. Reliance was also placed on certain decisions of the Apex Court. 4.2 Counter affidavit was filed on behalf of the GPSC contending that Rule 4 of the Examination Rules prescribing the procedure for appointment by direct selection permits the GPSC to prescribe the minimum qualifying marks at the viva-voce and personality test and that in the case of LV Ashara (supra) also this Court had held that it is left to the discretion of the Commission whether or not to prescribe the qualifying marks. It was also contended in the reply affidavit that looking to the principles laid down by the Hon'ble Supreme Court in several decisions, prescription of 35 marks out of 125 marks (28% at the viva-voce test) for the general category candidates was not arbitrary. LPA/1390/2005 10 JUDGMENT 5.1 When the matters were pending before the learned Single Judge of this Court (Coram: Hon'ble Mr Justice YB Bhatt as His Lordship then was), while passing orders on 17.9.2002, the learned Single Judge made the following observations:- “Another question which would arise, particularly in the facts of this case, is as to whether the qualifying marks at the viva-voce /interview were fixed by the Viva Voce Committee before conducting the interviews or after conducting the interviews. It is obvious that if qualifying standard was fixed by the Viva Voce Committee after conducting the interviews, the allegations of malafide would require to be seriously considered. In the context of the above situation, the GPSC is directed to file an appropriate affidavit addressing these issues particularly on the facts required to be placed on record, so as to address these controversies.” (emphasis supplied) 5.2 In compliance with the aforesaid directions, further affidavit dated 8.10.2002 came to be filed by Dy. Secretary, Gujarat Public Service Commission stating inter-alia as under:- “In the instant case, minimum qualifying marks for viva-voce/ interview are fixed after the viva-voce is over. I repeat it once again that fixing of minimum marks for viva-voce/interview is performed by the Commission (and not the interviewing committee). I say that in view of the observation made by the Hon'ble Apex Court in case of State of UP vs. Rafiqquddin and others, as reported in AIR 1988 SC 162, the LPA/1390/2005 11 JUDGMENT Commission may fix the minimum qualifying marks at any stage. ... ....” (emphasis supplied) After quoting the paragraphs from the said decision, the deponent of the affidavit further stated as under:- “I say that as no minimum qualifying marks for viva-voce/interview in the instant case is decided either before or during viva- voce/interview, there is no possibility of malafide of the minimum qualifying marks for viva-voce/interview being used as a weapon to favour selection of 'some' candidates and/or to reject 'some' candidates, by the committee for the viva-voce/interview. 9. I say that even the facts : (i) that none of the members conducting viva-voce/interview is aware about the written test marks of the candidates being interviewed, and, (ii) that candidates are not called for interview in the order of their merit i.e. in order of the marks obtained by the candidates – literally renders it impossible to use the minimum qualifying marks for viva-voce/interview as a tool to select and/or reject some candidates. Hence, no question of oblique motive and/or malafide. For the sake of clarification, I say that the candidates are called for viva- voce/interview as per their seat number and category wise and even at the cost of repetition, I say that no member conducting viva-voce/interview, is aware about the written test marks of the candidates being interviewed.” LPA/1390/2005 12 JUDGMENT The GPSC also justified the prescription of minimum qualifying marks for the viva-voce/interview, the purpose of which is to test qualities, like leadership, presence of mind, reacting to hypothetical problems, alertness, general awareness and interacting with people. 5.3 The learned Single Judge referred to Rule 4 of the Examination Rules and after considering the decision of the Division Bench of this Court in LV Ashara's case (supra) as well as certain decisions of the Apex Court, more particularly in State of UP vs. Rafiquddin, AIR 1988 SC 162 held that Rule 4 did empower the GPSC to prescribe the minimum qualifying marks for viva-voce test also and that prescription of 35 out of 125 marks (28%) was not unreasonable, more particularly considering the fact that the written test was for 900 marks and 125 marks were allotted for viva-voce i.e. 12.5% of the total marks. The learned Single Judge also negatived the allegations of malafide and dismissed the petitions. 6. It is against the aforesaid judgment that two out of the six original petitioners are in appeal before us. Both the appellants were working as Assistant Executive Engineers under the State Government on the date of the viva-voce test and at present also they are working in the same capacity. LPA/1390/2005 13 JUDGMENT COMMISSION'S POWER TO FIX MINIMUM QUALIFYING MARKS AT VIVA-VOCE TEST. 7. Rule 4 of the Executive Engineers (Civil) Gujarat Engineering Service Class-I Recruitment Rules, 1979 (which Rules provide for common competitive examination for recruitment to Gujarat Service of Engineers Class-I and Gujarat Service of Engineers Class-II) reads as under:- “4. The Commission will fix what should be the qualifying marks in any or all the subjects of the examination and the total either generally for all candidates or separately for candidates from the Scheduled Castes/ Scheduled Tribes, Socially and Economically Backward Class including Nomedic and Denotified Tribes in respect of vacancies reserved for such candidates and for other candidates, and a candidate shall not be deemed to have qualified in the examination, if he fails to obtain the qualifying marks fixed by the Commission in the Viva-voce and Personality Test.” (emphasis supplied) 8. In LV Ashara's case (1985) 2 SLJ 83, a Division Bench of this Court held that though the Rule was not happily worded, it clearly empowers the Commission to prescribe the qualifying marks for written test as well as for viva-voce test. Whereas the Rule makes it obligatory on the Commission to prescribe qualifying marks for the written test, so far as viva-voce test is concerned, it is left to the discretion of the Commission whether or not to prescribe the qualifying marks. However, what LPA/1390/2005 14 JUDGMENT prompted the Division Bench to strike down the select list in Ashara's case was that while the minimum qualifying standard prescribed by the Commission at the written test for the purpose of being eligible for viva-voce test was 45% (447 marks out of 900 marks), the Commission prescribed 50% as the minimum qualifying marks at viva-voce test for the purpose of being considered suitable for the post. This Court held that no justification was given by the Commission for fixing such high percentage of minimum qualifying marks for the viva-voce test as compared to the lower percentage fixed for qualifying at the written test. The Court of course appreciated the importance of an oral interview or a viva-voce test, which is necessary to get a full and complete picture of the candidate, particularly when question of selection is for appointment to a post requiring certain aptitudes, personality and many other qualities, such as initiative, resourcefulness, effectiveness in discussion, adaptability and capacity for decision making. The Court held that for assessing such qualities interview was necessary. However, since the percentage of minimum qualifying marks at the viva-voce test was prescribed at 50%, this Court directed the Commission to consider the question of inclusion of the candidates' names in the merit list on the basis of aggregate of marks in the written test as well as viva-voce tests ignoring the concept of minimum qualifying marks at viva-voce test. LPA/1390/2005 15 JUDGMENT 9.0 We now turn to the Apex Court decisions on the subject. 9.1 In State of UP vs. Rafiquddin, AIR 1988 SC 162, the Apex Court laid down the following principles:- “..The Commission had therefore power to fix the norm and in the instant case it had fixed 35 per cent minimum marks for viva-voce test. The viva voce test is a well-recognised method of judging the suitability of a candidate for appointment to public services and this method had almost universally been followed in making selection 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) 9.2 In Manjeet Singh vs. Employees State Insurance Corporation, (1990) 2 SCC 367 the Apex Court held that even prescription of 40% as qualifying marks for the interview test would be reasonable. 9.3 Very recently in KH Siraj vs. High Court of LPA/1390/2005 16 JUDGMENT Kerala, 2006 AIR SCW 3136 = 2006 (6) SCC 395, Rule 7(1) of the Kerala Judicial Services Rules, 1991 read as under:- “7. Preparation of lists of approved candidates and reservation of appointments. - (1) The High Court of Kerala shall, from time to time, hold examinations, written and oral, after notifying the probable number of vacancies likely to be filled up and prepare a list of candidates considered suitable for appointment to Category 2. The list shall be prepared after following such procedure as the High Court deems fit ... ... ... .....” The competitive examination for appointment to the posts of Munsif Magistrate comprised of written test of 400 marks and oral examination of 50 marks. The Kerala High Court issued advertisement (notification) dated 26.3.2001 inviting applications specifically mentioning in para 10(3) that the qualifying marks would be as under:- Written examination At least 35 per cent marks in each paper with an overall minimum of 45 per cent of the total marks for the written examination (for SC/ST candidates 30 percent with an overall minimum of 35 percent) Oral examination 30 percent of the marks for the oral examination LPA/1390/2005 17 JUDGMENT The appellants before the Apex Court were not selected as they had not secured the prescribed minimum marks at the oral examination. The appellants challenged the said selection. They contended that in the absence of specific legislative mandate under Rule 7(1) of the Rules prescribing cut-off marks in oral examination, the fixing of separate minimum cut- off marks in the interview for further elimination of candidates after a comprehensive written test touching the required subjects in detail, was violative of the statute. After considering all the previous decisions on the subject, the Apex Court has held as under:- (i) What the High Court has done by the notification dated 26.3.2001 is to evolve a procedure to choose the best available talent. It cannot for a moment be said that prescription of minimum pass marks for the written examination or for the oral examination is in any manner irrelevant or not having any nexus to the object sought to be achieved. (ii)The interview is the best mode of assessing the suitability of a candidate for a particular position. While the written examination will testify the candidate's LPA/1390/2005 18 JUDGMENT academic knowledge, the oral test alone can bring out or disclose his overall intellectual and personal qualities like alertness, resourcefulness, dependability, capacity for discussion, ability to take decisions, qualities of leadership etc. (iii)Acceptance of the contention of the appellant- petitioners can even lead to a postulate that a candidate who scores high in the written examination but is totally inadequate for the job as evident from the oral interview and gets zero marks may still find a place in the judiciary. It is, therefore, that the High Court has set a benchmark for the oral interview, a benchmark which is actually low as it requires 30% for a pass. The total marks for the interview are only 50 out of a total of 450. The prescription is, therefore, kept to the bare minimum and if a candidate fails to secure even this bare minimum, it cannot be postulated that he is suitable for the job of Munsif Magistrate, as assessed by five experienced Judges of the High Court. (iv) The very scheme and amplitude of Rule 7 under which the selection is made is sufficient answer to the contention of the appellants. The candidate to be selected must be found suitable for the post of a LPA/1390/2005 19 JUDGMENT judicial officer. (v) “Apart from the amplitude of the power under Rule 7, it is clearly open to the High Court to prescribe benchmarks for the written test and oral test in order to achieve the purpose of getting the best available talent. There is nothing in the Rules barring such a procedure from being adopted. It may also be mentioned that executive instructions can always supplement the Rules which may not deal with every aspect of a matter. Even assuming that Rule 7 did not prescribe any particular minimum, it was open to the High Court to supplement the rule with a view to implement them by prescribing relevant standards in the advertisement for selection.” (emphasis supplied) FOCUS OF CONTROVERSY 10. In the present case, in view of the aforesaid provisions of Rule 4 of the Examination Rules, the aforesaid principles laid down by this Court in LV Ashara's case (supra) and also the principles laid down by the Apex Court in the aforesaid decisions, the appellants before us were not in a position to seriously press their challenge to power of the Commission to prescribe the minimum qualifying marks, but submitted that - LPA/1390/2005 20 JUDGMENT (i) the post of Dy. Executive Engineer is more or less a technical post and, therefore, prescription of 35 out of 125 marks as the minimum qualifying marks for the viva-voce test was excessive and unreasonable. (ii) in any view of the matter, the Commission also acted arbitrarily and unreasonably in not prescribing the minimum qualifying marks for the viva-voce test before the viva-voce test and in prescribing such minimum qualifying marks after the viva- voce test was over and the results of both the written as well as the viva-voce test were available with the Commission. 10.1 Apart from placing reliance on the observations made by the learned Single Judge in the order dated 17.9.2002 which are already quoted in para 5.1 hereinabove, the appellants stated