Full Judgment Text
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PETITIONER:
PRAVEEN SINGH
Vs.
RESPONDENT:
STATE OF PUNJAB & ORS.
DATE OF JUDGMENT: 10/11/2000
BENCH:
U.C.Banerjee, G.B.Pattanaik
JUDGMENT:
BANERJEE,J.
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Arbitrariness being opposed to reasonableness is an
ante- thesis to law. There cannot, however, be any exact
definition of arbitrariness neither can there be any
straight jacket formula evolved therefor, since the same is
dependent on the varying facts and circumstances of each
case. The basic facts pertaining to the appeal against the
judgment of the High Court depict that the Writ Petition of
the appellant was dismissed by the High Court on the ground
that there is no infraction of law neither the Public
Service Commission in the State of Punjab has deviated from
the criteria laid down for selection of candidates for the
post of Block Development and Panchayat Officer.
Incidentally the grievance of the Writ Petitioner-appellant
pertains to violations of the equality clause under Articles
14 and 16 of the Constitution read with provisions of Punjab
Development and Panchayat Class-II (Service) Rules, 1974.
On the factual score it appears that the Punjab Public
Service Commission in June, 1993 issued an advertisement for
26 vacancies of Block Development and Panchayat Officers but
before the process of selection could be finalised, the
Government of Punjab filled up the vacancies through ad hoc
appointments by reason wherefor, the Service Commission
considered it fit not to proceed with the selection any
further. The records depict that these ad hoc appointments,
however by the order of the High Court in a Petition under
Article 226 stands quashed and the appeal therefrom was
dismissed by this Court. This Court, however, while
rejecting the appeal was pleased to direct the Public
Service Commission (Punjab) to complete the process of
selection by 9th July, 1995 and in terms therewith, the
Service Commission issued a corrigendum to the advertisement
but the vacancies were enhanced from 28 to 44 for reasons of
exigencies of the situation. It is against this corrigendum
to the advertisement about 4,500 people appeared in written
test and subsequently roll numbers of 130 candidates only
were published, being eligible to appear in the viva voce
test. On 9th July, 1995 the final result was announced and
the names and roll numbers of candidates who were found
suitable for appointments were published in order of merit.
The petitioners name, however, did not figure in the merit
list, which stands challenged in the Writ Petition before
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the High Court but the same however stands negated by the
High Court and hence the appeal before this Court. The bone
of contention raised in the appeal is the non- consideration
of the marks secured by the candidates in the written
examination while determining the overall merit of the
candidates and the real merit has been ignored at the time
of preparation of select list by the Service Commission and
in this context, strong reliance was placed on the
information sheet as circulated by the Service Commission,
relevant extracts of which are as below: EXAM.1/93 PUNJAB
PUBLIC SERVICE COMMISSION, PATIALA Information Sheet and
Instructions to Candidates BLOCK DEVELOPMENT AND PANCHAYAT
OFFICERS EXAMINATION, 1993 IMPORTANT NOTE :- xx xx xx xx xx
xx xx xx CLOSING DATE
Vacancies and Reservations: .
Qualifications: . Scheme of Examination: 3.
There will be four papers for written test (a) General
Knowledge including everyday science; (b) General
English/Essay, (c) Community Development Panchayat Raj and
Agricultural Development (d) Punjabi Language test of
matriculation Standard, followed by viva voce test. The
qualifying standard and syllabus etc. is given in the rules
attached. xxxx xxxx xxxxx
12(1). The examination will consist of the following
subjects and marks indicated against each: S.No. Subject
Standard of Maximum The papers marks
1. English/English BA/BSc. Of the 100 Punjab
University
2. Punjabi (in Matriculation of 50 Gurmukhi Script)
Punjab School Education Board
3. General Knowledge BA/BSc. Of the 100 Punjab
University
4. Community As per detailed 100 Development Syllabus
in para 6 Panchayat Raj and below. Agricultural
5. Viva Voce 50
xx xxx xxxx
2. No candidate shall be eligible to appear in the
viva voce test unless he obtains 33 per cent marks in each
paper and 45 per cent marks in aggregate.
xx xxx xxxx
Paragraph 12(1) of the document thus expressly
provides that the examination shall consist of four
different subjects with 100 marks each for three subjects
and fifty marks (50) stand earmarked for the 4th vernacular
(Punjabi in Gurmukhi script) totaling 350 marks and further
50 marks for viva voce test. The essentiality of viva voce
test however stands established by reason of express
narration under the scheme of examination viz. followed
by viva voce test. In the event of there being a written
test for elimination, the scheme of the examination would
not have been detailed in the manner as it has been so
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stated. Paragraph 3 of the instructions refers to the rules
for laying down the qualifications and the syllabus for the
examination. Admittedly, these rules have been framed by
the Governor of Punjab in exercise of his power under the
proviso to Article 309. Rule 5 of the Rules referred to the
qualification that a person can be appointed to the service
who possesses the educational and other qualifications
specified in Appendix B. In Appendix B, the posts of Block
Development and Panchayat Officers appear at item No.20 and
the qualifications mentioned therein are as below: (i)
Graduate of a recognised University; Preference to
Graduate in Agriculture; (ii) Knowledge of Punjab language
upto Matriculation or equivalent standard; (iii) Candidates
will be required to qualify the following written tests at
the time of recruitment;
(i) General Knowledge 100 marks (ii) General
English/Essay of BA Standard 100 marks
(iii) Community Development 100 marks Panchayati Raj
and Agricultural Development
(iv) Punjabi language test of 50 marks matriculation
standard
(v) Viva Voce 100 marks
The qualifying standard in the test will be 33% pass
marks in each paper and 45 per cent in the aggregate.
It is on the basis of the rules together with the
information sheet as noticed herein before, that the High
Court came to the conclusion that there is no arbitrariness
in the matter of selection of candidates. The said finding
stands challenged before us principally on the ground that
there is existing a dual requirement viz., written test as
also the viva-voce test and the marks obtained therein in
both counts ought to have formed part of the process of
determining the merit and the Public Service Commission had
no authority or jurisdiction to effect the selection solely
on the basis of the performance of the candidates at the
viva voce examination. The respondents however contended
that since it was not possible to interview about 4,500
candidates, the Public Service Commission resorted to a
written elimination test in order to facilitate the
interview process or the viva voce test. It was contended
that as a matter of fact 130 candidates have been called for
the viva voce test out of 4,500 approximately as against 44
vacant posts: A short digration from the facts however may
not be totally unjustified at this juncture by reason of
enormity of the issue of available employment opportunity.
4,500 persons applied for 40 vacancies a rather sordid
state of affairs, - employment opportunities are so meagre
as compared to the need and the situation has reacted its
optimum without any indication even of a descending trend.
Needless to record that this is not in Punjab only but this
is reflected every State in the country in some States the
ratio being still be higher we are however not expressing
any opinion but recording factum only so as to focus the
magnitude of the problem. Turning on to the contentions as
raised by the respondent herein that the written test on the
wake of the documentary evidence available in the records
cannot but be termed to be a mere qualifying test and since
Service Commission has proceeded to select the candidates on
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the basis of the performance of the candidates at the viva
voce examination the actions cannot be faulted in any way
neither can the same be ascribed to be arbitrary or
capricious. Relying upon the aforesaid, however, the High
Court observed that even though the rule is not properly
articulated but on a rational interpretation, there is no
escape from the conclusion that passing of the written test
with 33% marks in each paper and 45% marks in aggregate does
not ipso facto entitle a candidate to be called for viva
voce/interview. The High Court however proceeded on the
right of the employer for short-listing and screening since
the same has been recognised by the law courts keeping in
view the ground reality, as it is otherwise a well-neigh
impossibility for the selecting agency to interview all the
candidates. The High Court also took into consideration the
number of candidates and the time that shall be otherwise
consumed in the event of interview of a larger number of
people and as such the High Court came to the conclusion
that the Punjab Public Service Commission was justified in
adopting a rational yardstick for short-listing the number
of candidates for viva voce test and no arbitrariness or
illegality can be attributed therein and the factum of
judging the merits of the candidates on the basis of viva
voce test being prevalent in the Punjab Public Service
Commission since the year 1978 has also been taken into
consideration by the High Court. While it is true that the
administrative or quasi-judicial authority clothed with the
power of selection and appointment ought to be left
unfettered in adaptation of procedural aspect but that does
not however mean and imply that the same would be made
available to an employer at the cost of fair play, good
conscience and equity. This Court in the case of J P
Kulshreshtha & Ors. v. Chancellor, Allahabad University &
Ors. [AIR 1980 SC 2141] did recognise the undetectable
manipulation of results being achieved by remote control
tacits and masked as viva voce test resulting the sabotaging
of the purity of proceedings. This Court held interviews
as such are not bad but polluting it to attain illegitimate
ends is bad. What does Kulshreshthas case(supra) depict?
Does it say that interview should be only method of
assessment of the merits of the candidates? The answer
obviously cannot be in the affirmative. The vice of
manipulation, we are afraid cannot be ruled out. Though
interview undoubtedly a significant factor in the matter of
appointments. It plays a strategic role but it also allows
creeping in of a lacuna rendering the appointments
illegitimate. Obviously it is an important factor but ought
not to be the sole guiding factor since reliance thereon
only may lead to a sabotage of the purity of the
proceedings. A long catena of decisions of this Court have
been noted by the High Court in the judgment but we need not
dilate thereon neither we even wish to sound a contra note.
In Ashok Kumars case [Ashok Kumar Yadav v. State of
Haryana :1985 (3) SLR 200] this Court however in no
uncertain terms observed: There can therefore be no doubt
that the viva voce test performs a very useful function in
assessing the personal characteristics and traits and in
fact tests the man himself and is therefore regarded as an
important tool along with the written examination (emphasis
supplied). The situation envisaged by Chinnappa Reddy, J.
in Lila Dhars case [Lila Dhar vs. State of Rajasthan :AIR
1981 SC 1777] on which strong reliance was placed is totally
different from the contextual facts and the reliance thereon
is also totally misplaced. Chinnappa Reddy, J. discussed
about the case of services to which recruitment has
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necessarily been made from persons of mature personality and
it is in that perspective it was held that interview test
may be the only way subject to basic and essential academic
and professional requirements being satisfied The facts in
the present context deal with Block Development Officers at
the Panchayat level. Neither the job requires mature
personality nor the recruitment should be on the basis of
interview only, having regard to the nature and requirement
of the concerned jobs. In any event, the Service Commission
itself has recognised a written test as also viva voce test.
The issue therefore pertains as to whether on a proper
interpretation of the rules read with the instructions note,
the written examination can be deemed to be a mere
qualifying examination and the appointment can only be given
through viva voce test - a plain reading of the same however
would negate the question as posed. A close look at the
qualification as prescribed and the information sheet,
however, in our view would depict otherwise. The
qualifications prescribes that the candidates will be
required to qualify for the following written test at the
time of recruitment and the qualification standard in the
test has been fixed tobe at 33% pass marks in each paper
with 45% however in the aggregate (emphasised) and paragraph
4 of the Information sheet, as above, in no uncertain term
records that no candidate shall be eligible to appear in the
viva voce test unless he obtains 33% marks in each paper and
45% marks in the aggregate. Reading the two requirements as
above, in our view question of having the written test
written off in the matter of selection does not and cannot
arise. Had it been the intent of the Service Commission,
then and in that event question of there being a totality of
marks would not have been included therein and together with
specified marks for viva voce tests, would not have been
there neither there would have any requirement of qualifying
pass marks nor there would have any aggregate marks as
noticed above. Further, in the event, the interview was the
sole criteria and the written test being treated as
qualifying test, the Public Service Commission ought to have
clearly stated that upon completion of the written
elimination test, selection would be made on the basis of
the viva voce test only as is available in the decision of
Ashok & Ors. v. State of Karnataka (1992 (1) SCC 28). Be
it noted that there is always a room for suspicion for the
common appointments if the oral interview is taken up as the
only criteria. Of course, there are posts and posts, where
interviews can be a safe method of appointment but to the
post of a Block Development Officer or a Panchayat Officer
wherein about 4500 people applied for 40 posts, interview
cannot be said to be a satisfactory method of selection
though however it may be a part thereof In the factual
score we have the advantage of having the Rules prescribing
the mode and method of appointments and specific marks are
earmarked for written examinations of various subjects
together with totality of marks for viva voce test. As a
matter of fact out of 450 marks only 50 marks have been
allotted for interview by the Service Commission itself -
why these 400 marks allotted for a written examination in
four different subjects, if interview was to be the guiding
factor: there has been however, no answer to the same
excepting that the Court ought not to interfere in the
matter of selection process in the absence of mala fides
true it is that in the event the selection is tainted with
mala fides, it would be a plain exercise of judicial power
to set right the wrong but is it also realistic to assume
that when the Commission in clear and categorical language
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recorded that 450 marks would be the total marks for the
examination and out of which only 50 marks are earmarked for
viva voce test, the Commission desired that these 50 marks
would be relevant and crucial and the other 400 marks would
be rendered totally, superfluous and of no effect at all.
The language used is rather plain and is not capable of the
interpretation as is being presented before us during the
course of hearing and as has been held by the High Court.
Reliance on 50 marks only and thereby avoiding the other 400
marks cannot in our view having due regard to the language
used, be said to be reasonable or devoid of any
arbitrariness. The action of the respondent Commission thus
is wholly unreasonable, unfair and not in accordance with
the declared principles. Appointment procedure is evident
from the documentary evidence disclosed in the proceedings
and the Commission ought to have taken note of the written
examination results as well. As a matter of fact the High
Court while recording its acceptance to the method of
selection on the basis of the viva voce test only, was
pleased to observe as below: However, we consider it
absolutely imperative to observe that the Government should
get the rules examined and make proper amendment so that its
intention of making distinction between qualifying test and
viva voce test does not remain obscure. We also direct the
PPSC to take extra precautions while issuing any future
advertisement so that no inconsistency remains between the
rules and the contents of the advertisement.
The High Court admittedly therefore found
inconsistency and obscurity in the entire process and as a
matter of fact, the High Court has suggested incorporation
of proper amendments in the rules so as to avoid confusion
and obscurity. We are however, constrained to note that
having come to a finding about the inconsistency and
obscurity in the process, the High Court thought it fit to
decry the claim of the writ petitioner being the appellant
herein on the plea of the employers right but the documents
through which the right flows indicates a contra situation
and as such the action suffers from the vice of
arbitrariness and unreasonableness warranting intervention
of this Court. On the wake of the above, the order of the
High Court stands set aside and quashed. Consequently the
appointments are also set aside. The Public Service
Commission is directed to complete the process of selections
in terms of the existing rules so that both the written and
the viva voce test be taken into consideration for the
purpose of effecting appointments. It is made clear that no
further advertisement or examination shall take place but
reconsideration of the entire process be effected upon due
reliance on the written as well as viva voce test. The
process be completed within a period of 3 months from the
date thereof. It is further made clear that the
appointments if any, already made shall continue, but shall
be subject to the further results which may be declared by
the Public Service Commission in regard to filling up of the
posts of Block Development and Panchayat Officers. The
appeal thus stands allowed. There will however be no order
as to costs.