1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : S.B. Civil Writ Petition No.3320/2006. (Bhawani Singh Charan Vs. State of Rajasthan & Others) DATE OF ORDER : September 23rd, 2008 P R E S E N T 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 2 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. 3 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 4 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 5 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 6 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 7 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. 8 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 9 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 10 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. 11 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 (Petition) Raghuveer Singh (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 12 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 13 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 14 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.