CWP No.10141 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No.10141 of 2008 Date of decision March 4, 2010 Varun Vir ....... Petitioners Versus Uttri Haryana Bijli Vitran Nigam Limited and others ........ Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. Vijay Pal, Advocate for the petitioner. Mr. Parveen Gupta, Advocate for Mr. Narender Hooda , Advocate for respondent No.1. Mr. R.D. Sharma, DAG., Haryana for respondent No.2. Mr. Sushil Jain, Advocate for respondent No.4. Mr. R.K. Malik, Sr. Advocate with Mr. Surya Pratab Singh, Advocate for respondent No.3,5 to 9,11,13,16,17,19,22 to 28,30 to 32. Mr. S. K. Sud, Advocate **** K. Kannan, J (oral). 1. The challenge to a selection to the post of Junior Engineer in the first respondent's Organization is based on two counts namely i) the advertisement did not spell out the selection criteria and ii) when the criteria had been obtained, it was seen that out of 75 marks 25 marks had been assigned for interview and 50 marks had been assigned for academic qualifications. The marks assigned for interview was grossly CWP No.10141 of 2008 2 high and violated the norms set by the decisions of the Hon'ble Supreme Court. 2. The first objection that the advertisement had not set out any selection criteria, is in my view, not tenable. If it transpired ultimately that there had been no criteria at all for selection it could have afforded to the petitioner a ground for challenge. On the other hand, selection criteria had been laid down and the petitioner cannot complain now that they had not been set forth in the advertisement. Further, if he was so aggrieved he ought to have taken up a matter for challenge immediately after the advertisement and before the selection process was undertaken. The said objection therefore cannot be countenanced. 3. As regards the contention that the marks assigned as 25 for viva voce made possible a higher grading for subjective consideration, learned counsel would rely on the decisions of the Hon'ble Supreme Court in Ajay Hasia etc. Vs. Khalid Mujib Sehravardi and others 1980 SLR 467, Ashok Kumar Yadav and others Vs. State of Haryana and others reported in 1985 (3) SLR 200 and Ashok alias Somanna Gowda and another Vs. State of Karnatka by its Chief Secy and others reported in 1992 (3) SLR 149. In Ajay Hasia's case (supra) the Hon'ble Supreme Court was dealing with a case of admission to an educational institution where it found that reserving 50 marks for oral interview as against 100 allowed for written test amounted to a high percentage i.e. 33½% of total marks and hence held to be impermissible. In Ashok Kumar Yadav's case (supra) the Hon'ble High Court again frowned upon the Punjab Civil Services Selection which dealt with a situation of a higher grading of 33 ½ %marks for ex-servicemen and 22.2% marks for general category for viva voce test as excessive and arbitrary. In Ashok Kumar alias Somana Gowda's case (supra) the Supreme Court was again dealing with the issue of allotment of 33.3% for interview and CWP No.10141 of 2008 3 held it to be very high. 4. To these submissions the learned counsel appearing on behalf of the 9th respondent Mr. R.K. Malik, Senior Advocate refers to a judgment of Kiran Gupta and others Vs. State of U.P., and others Vs. State of U.P., and others reported in 2000 (4) RSJ 439 where all the decisions cited to by the learned counsel for the petitioner had been referred. The consideration of the matter obtains in paragraphs 21,22 and 23 of the judgment. They are reproduced hereunder:- “21. In Shri Janki Prasad Parimoo and others Vs. State of Jammu and Kashmir and others,1973 (1) SCC 420, the challenge was against selection for the posts of Headmasters made by the Selection Committee on the basis of interview. Constitution Bench of this Court while approving the method of selection by interview, held that when appointment to higher posts were made it might be perfectly legitimate to test the candidate at a properly conducted interview. It was observed that the efficiency of a teacher and his qualification to be appointed as a Headmaster depended upon several considerations- his character, his teaching experience, ability to manage his class, his popularity with the students and the high percentage of successful students he was able to produce, and that all those matters must be necessarily taken into consideration before making a selection. 22. It is difficult to accept the omnibus contention that selection on the basis of viva voce only is arbitrary and illegal and that since allocation of 15% marks for interview was held to be arbitrary by this Court, Selections solely based on interview is a fortiori illegal. It will be useful to bear in mind that there is no rule of thumb with regard to allotment of percentage of marks for interview. It depends on several factors and the question of permissible percentage of marks for an interview test has to be decided on the facts of each case. However, the decisions of this Court with regard to reasonableness of percentage of marks allotted for interview in cases of admission to educational institutions/schools will not afford a proper guidance in determining the permissible CWP No.10141 of 2008 4 percentage of marks of interview in cases of selection/ appointment to the posts in various services. Even in this class, there may be two categories : i) when the selection is by both a written test and viva voce; and ii) by viva voce alone. The courts have frowned upon prescribing higher percentage of marks for interview when selection is on the basis of both oral interview and a written test. But, where oral interview alone has been the criteria for selection/appointment/promotion to any posts in senior positions the question of higher percentage of marks for interview does not arise. Therefore, we think it an exercise in futility to discuss these cases- Minor A. Peeriakaruppan etc. Vs. State of Tamil Nadu and others, 1971 (1) SCC 38, and Ajay Hasia and others Vs. Khalid Mujib Sehravardi and others, 1981 (1) SCC 722- relied upon by Mr. Goswami, which deal with admission to educational institutions/schools and also cases where prescribed method of recruitment was written test followed by interview. Ashok Kumar Yadav and others Vs. State of Haryana and others, 1993 (4) RSJ 73, 1985 (4) SCC 417; D.V. Bakshi and others Vs. Union of India and others, 1993 (3) SCC 663, Krishna Yadav and another Vs. State of Haryana and others, 1994 (4) SCC 165. 23. However, it will be apt to refer to the decision of a three Judge Bench of this Court in Lila Dhar Vs. State of Rajashan and others, 1981 (4) SCC 159. There, the impugned selection for the posts of District Munsifs under Rajasthan Judicial Service Rules was made by the Rajasthan Public Service Commission. The ratio of marks allocated for written test and interview was 75:25. Speaking for the Court, Justice O. Chinnappa Reddy pointed out: “In the case of admission to a college, for instance, where the candidates personality is yet to develop and it is too early to identify the personal qualities for which greater importance may have to be attached in later life, greater weight has per force to be given to performance in the written examination. The importance to be attached to the interview- test must be minimal. Therefore, the ratio of the decisions in CWP No.10141 of 2008 5 Minor A. Peeriakaruppan etc. Vs. State of Tamil Nadu and others, 1971 (1) SCC 38 and Ajay Hasia and others Vs. Khalid Mujib Sehravardi and others, 1981 (1) SCC 722, in this regard, cannot be applied in case of services to which recruitment has necessarily to be made from persons of mature personality, interview test may be the only way, subject to basic and essential academic and professional requirements being satisfied.” 5. The Hon'ble Supreme Court was setting down the law in Kiran Gupta's case (supra) after consideration of all the decisions as to how in the cases of service to which recruitment had necessarily to be made from the persons of mature personality, interview could be the best method of assessment subject to basic and essential academic qualification and professional requirements being satisfied. In Lila Dhar Vs.State of Rajasthan and others 1981 (4) SCC 159 cited in Kiran Gupta's case (supra), the Hon'ble Supreme Court was actually dealing with the case where the ratio of the marks for written test to interview was 75: 25. The issue of how much marks would be appropriate for to be assigned for interview shall be seen to be understood in the particular factual context and ability of the interview committee to draft the best talent. It shall not be possible to reject the selection criteria as arbitrary and bad by the only fact that 25 marks had been assigned out of 75 marks for interview. The challenge to the selection ought to fail and the writ petition deserves to be dismissed in the light of decisions cited above, and is accordingly dismissed. (K. KANNAN) JUDGE March 4, 2010 archana