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PETITIONER: ASHOK KUMAR YADAV AND ORS. ETC. ETC.

       Vs.

RESPONDENT: STATE OF HARYANA AND ORS. ETC. ETC.

DATE OF JUDGMENT10/05/1985

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. CHANDRACHUD, Y.V. ((CJ) SEN, AMARENDRA NATH (J) ERADI, V. BALAKRISHNA (J)

CITATION:  1987 AIR  454            1985 SCR  Supl. (1) 657  1985 SCC  (4) 417        1985 SCALE  (1)1290  CITATOR INFO :  R          1987 SC2267  (14)  R          1988 SC 162  (11,13)  D          1988 SC1451  (8)  R          1988 SC2073  (18)  R          1991 SC 295  (14)  F          1991 SC1011  (9,10)  R          1992 SC  80  (2)

ACT:      Constitution of India, 1950, Article 316 and 226 Public Service  Commission-Chairman   and  Members-Whether  possess qualification and  men of integrity and calibre-Whether High Court has  power to  inquire in  such  question-Condemnatory observations by  High Court-No factual basis on pleadings or evidence-Propriety and validity of.      Administrative Law-      Natural Justice-Condemnatory  observations made by High Court  against   Chairman  and  Members  of  Public  Service Commission without  their  being  party  respondents-Whether justified.      Recruitment  to   posts  in   Haryana   Civil   Service (Executive) &  Allied Services-Selection  by Public  Service Commission-Some interviewed  candidates closely  related  to Members-Selections-Whether vitiated.      Viva voce  examination-20 candidates  called  for  each post-Whether justified-Allocation  of 33.3% marks in case of ex-service officers  and 22.2%  in case of other candidates- Whether the  viva voce  examination suffers from the vice of arbitrariness-Guidelines for  fixing  marks  for  viva  voce examination-Indicated.

HEADNOTE:      Rule  9   clause  (1)   of  the  Punjab  Civil  Service (Executive Branch),  Rules  1930  prescribes  a  competitive examination  for  recruitment  to  posts  in  Haryana  Civil Service (Executive)  and other  allied services.  Regulation (I)  in   Appendix  (I)   lays  down  that  the  competitive examination shall include compulsorily and optional subjects and that  every candidate shall take the compulsory subjects and not  more than  three of the optional subjects, and that

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ex-servicemen  shall  not  be  required  to  appear  in  the optional subjects.  As  per  Regulation  5,  the  compulsory subjects carry  in the aggregate 400 marks and there is also viva-voce examination  which is compulsory and which carries 200 marks and each optional subject carries 100 marks. Thus, the written  examination carries  an aggregate  of 700 marks for candidates  in general  and for ex-servicemen it carries an aggregate  of 400  marks while  in case of both, the viva voce examination  carries 200  marks. Regulation  3 provides that no  candidate shall  be eligible  to appear in the viva voce test  unless he  obtains  45  per  cent  marks  in  the aggregate of all subjects.      In a  written examination  held by  the Haryana  Public Service Commission  for recruitment  to 61  posts in Haryana Civil Service  (Executive) and  other allied  Services, over 1300 candidates  obtained  more  than  45%  marks  and  thus qualified 658 for  being   called  for   interview  for   the  viva   voce examination. The  Haryana Public  Service Commission invited all the  candidates for  the viva  voce examination  and the interviews lasted  for almost  half a  year. The  number  of vacancies also  rose during the time taken up in the written examination and  the viva voce test and ultimately 119 posts became available  for being filled and on the basis of total marks obtained  in the  written examination  as well a viva- voce test,  119 candidates  were selected and recommended by the  Haryana   Public  Service   Commission  to   the  State Government.      The  respondents-petitioners  had  obtained  very  high marks at  the written  examination but  owing to rather poor marks obtained  in the  viva voce  test, they could not come within the  first 119  candidates and  were consequently not selected. They  filed several  writ petitions  in  the  High Court of  Punjab and Haryana challenging the validity of the selection of  the appellants and seeking a writ for quashing and setting  aside the  same. The  State of Haryana, Haryana Public Service  Commission, three  members  of  the  Haryana Public Service  Commission and five selected candidates were respondents  to   the  Writ   Petitions.  The   respondents- petitioners contended  before the  High Court:  (1) that the Chairman  and   members  of   the  Haryana   Public  Service Commission were  not men  of  high  integrity,  calibre  and qualification and  they were appointed solely as a matter of political patronage  and hence  the selections  made by them were invalid; (2) that three of the selected candidates were related to  two members  of the Commission namely, Shri R.C. Marya and  Shri Raghubar  Dayal Gaur  and though  these  two members did  not  participate  in  the  interview  of  their respective relatives,  they did participate in the interview of other  candidates and  the tactic adopted by the Chairman and the  members of the Commission was to give high marks to the relatives and award low marks to the other candidates so as to ensure the selection of their relatives. This vitiated the  entire  selection  process;  (3)  that  the  number  of candidates called  for interview  were almost  20 times  the number of vacancies and this not only imposed an intolerable burden on  the Haryana  Public Service  Commission but  also widened the  scope for  arbitrariness in selection by making it possible  for the  Haryana Public  Service Commission  to boost up  or deflate the total marks which might be obtained by a  candidate. This infirmity had the effect of invaliding the selection made by Haryana Public Service Commission; (4) that the  allocation of 200 marks for the viva voce test out of a total of 900 marks for the generality of students and a

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total of  600 marks  for ex  servicemen  was  arbitrary  and excessive and  it had  the effect  of distorting  the entire process of selection and it was accordingly unconstitutional as  involving   denial  of   equal  opportunity   in  public employment;  and  (5)  that  the  viva  voce  test  was  not conducted fairly  and honestly  and the selections made were vitiated on  account of  nepotism, favouritism  and casteism and also  political  motivation.  The  appellants,  however, submitted that  the challenge  to the validity of selections was unfounded  on the  grounds; (i) that not only was it not competent to  the Court  on the existing set of pleadings to examine whether  the Chairman  and members  of  the  Haryana Public  Service  Commission  were  men  of  high  integrity, calibre and  qualification but also there was no material at all on  the basis  of which the Court could possibly come to the conclusion that they were men lacking integrity, calibre or qualification;  (ii)  that  the  Haryana  public  Service Commission being  a  constitutional  authority  it  was  not necessary for  Sh. R.C.M Arya and Sh. Raghubar Dayal Gaur to withdraw altogether from 659 the interviews  and they  acted correctly in abstaining from participation when  their relatives  came to be interviewed. This was  in conformity with the principles of fair play and did not  affect the  validity of  the selections; (iii) that under Regulation 3 in Appendix I, the Haryana Public Service Commission was  justified in  calling for  interview all the 1300 and  odd candidates  who qualified by getting more than 45% marks;  (iv) that  the allocation  of 200  marks for the viva voce  test was  made under  the  Punjab  Civil  Service (Executive Branch)  Rules, 1930 and it had stood the test of time and  could not  possibly be  regarded as  arbitrary  or excessive; and  (v) that the selections were made fairly and honestly and they were not tainted by nepotism, favouritism, casteism or  political patronage,  besides there was nothing to show  that any  extraneous considerations  had influenced the  selection   process.  The  High  Court  set  aside  the selections made by the Haryana Public Service Commission and directed the Haryana Public Service Commission and the State of Haryana  to forthwith declare the result of candidates of all categories  on the  basis of  written examination alone, scrupulously excluding  all considerations  of the viva voce test.  Hence  these  appeals  by  the  appellants,  selected candidates, State  of  Haryana  and  three  members  of  the Haryana Public Service Commission.      Allowing the appeals, the Court, ^      HELD :  1. (i) The Division Bench of the High Court was not justified  in making  condemnatory observations  against the Chairman  and all  the members  of  the  Haryana  Public Service  Commission.   Three  members   namely  S/Sh.   D.R. Chaudhary, Raghubar Dayal Gaur and R.C. Marya were joined as respondent Nos. 3, 4 and 5 but the Chairman Shri B.S. Lather and another  member Shri  Gurmesh Prakash  Bishnoi were  not impleaded in  the writ  petitions and  yet the most damaging observations were  made against  them This  was  clearly  in violation of  the principles  of natural  justice. Moreover, these observations  against the  Chairman and members of the Haryana Public  Service Commission  were  made  without  any factual basis on the pleadings or the evidence.                                            [672 H; 673 A-B]      (ii) It  is difficult to see how on the basis of a mere averment in  paragraph 9 of one of the writ petitions, which averment was  disputed on  behalf of  the  respondents,  the Division Bench  of the High Court could possibly come to the

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conclusion  that   politics  had  played  a  major  role  in appointment of  the Chairman  and  members  of  the  Haryana Public Service  Commission and that they were men lacking in integrity, calibre  and qualification,  particularly when no such allegation  was made  by the  petitioners in any of the other writ  petitions. Therefore,  the Division Bench of the High Court  was not  at all  justified in  drawing from  the facts set out in paragraph 9 of Civil writ Petition No. 3344 of 1983  any inference  that the  Chairman and  members were totally unfit  to be appointed on the Haryana Public Service Commission or  that they  were not men of integrity, calibre and qualification.  However, it may be pointed out that even if the  Chairman and  members of  the Haryana Public Service Commission were  appointed on account of political and caste considerations,  they  could  still  be  men  of  character, integrity and  competence and  the extraneous considerations which might  have weighed with the appointing authority need not necessarily  reflect upon their competence, character or fitness. [674 A-C; 675 A-B] 660      (iii) The  High Court  was not justified in undertaking an inquiry  into  the  question  whether  the  Chairman  and members of the Haryana Public Service Commission were men of integrity, calibre  and  qualification  or  not.  It  was  a totally irrelevant  inquiry because  even if  they were  men lacking in  integrity, calibre  and qualification,  it would not  make   their  appointments  invalid,  so  long  as  the constitutional  and   legal  requirements   in   regard   to appointment were fulfilled. The High Court was also wrong in going into  the question whether the Chairman and members of the Haryana  Public Service  Commission  were  appointed  on account of  caste considerations  and political patronage or were lacking  in integrity,  calibre or  qualification, when the validity of their appointments was not challenged in the writ petitions  nor was any relief claimed for setting aside their appointments. The validity of their appointments could not  be   questioned  collaterally   while  considering  the challenge to the selections made by them.      In the  instant case,  no constitutional  provision was violated in  making appointments of the Chairman and members of the  Haryana Public  Service Commission nor was any legal provision breached  and the appointments of the Chairman and members of  the Haryana  Public Service Commission were made in   conformity    with   the   constitutional   and   legal requirements. If  that be  so, it  is difficult to see as to how the  appointments of  the Chairman  and members  of  the Haryana Public  Service  Commission  could  be  regarded  as suffering from  any infirmity or any selections made by them could be said to be vitiated, merely on the ground that they were not,  in the  opinion of the Division Bench of the High Court, possessed of integrity, calibre or qualifications.                          [675 C-D; 676 G-H; 675 H; 676 A-C]      C. Ranga  Raju v.  State of  Andhra  Pradesh  [1981]  3 S.C.R. 474 relied upon.      2. (i)  There was  no material  whatsoever on record to justify the  observations made  by the  Division Bench  that high marks  were undeservedly  given to the three candidates related to  Shri R.C. Marya and Shri Raghubar Dayal Gaur and low marks  were deliberately  given to the other meritorious candidates with  a view to manipulating the selection of the former at  the cost  of the  latter. In fact, far from there being any  material supportive of such observation, there is one circumstance,  which, completely  militates against  the view taken  by the  Division Bench  and that circumstance is that the  marks obtained  by the  candidates at  the written

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examination were not disclosed to the members of the Haryana Public  Service   Commission  who   held   the   viva   voce examination. If the members, who interviewed the candidates, did not  know what were the marks obtained by the candidates at the  written examination, it is difficult to see how they could  have   manipulated  the   marks  at   the  viva  voce examination with  a view  to pushing up the three candidates related to  Shri R.C.  Marya and Shri Raghubar Dayal Gaur or any other  candidates of  their choice  so as  to bring them within the range of selection. [682 C-E]      2. (ii)  It is  one of  the fundamental  principles  of jurisprudence that  no man  can be  a judge in his own cause and that  if there  is a reasonable likelihood of bias it is ’in accordance  with natural  justice and  common sense that the justice  likely to  be so biased should be incapacitated from sitting".  The question  is not  whether the  judge  is actually biased or in fact decides partially, but 661 whether  there  is  a  real  likelihood  of  bias.  What  is objectionable in  such a  case is  not that  the decision is actually tainted  with bias  but that  the circumstances are such as  to create  a reasonable apprehension in the mind of others that  there is  a likelihood  of bias  affecting  the decision. The  basic principle  underlying this rule is that justice must  not only  be done  but must  also appear to be done and  this rule has received wide recognition in several decisions of the Supreme Court. It is also important to note that this rule is not confined to cases where judicial power stric to sensu is exercised. It is appropriately extended to all cases  where an  independent mind  has to  be applied to arrive at  a fair and just decision between the rival claims of parties. Justice is not the function of the courts alone; it is  also the duty of all those who are expected to decide fairly between  contending  parties.  The  strict  standards applied to  authorities exercising  judicial power are being increasingly applied  to administrative  bodies, for  it  is vital to  the maintenance  of the  rule of  law in a welfare state where  the jurisdiction  of administrative  bodies  is increasing at a rapid pace that the instrumentalities of the State should  discharge their  functions in  a fair and just manner. Where  reasonable likelihood  of bias  is alleged on the ground  of relationship, the question would always be as to how  close is  the degree  of relationship  or  in  other words, is  the nearness  of relationship so great as to give rise to  reasonable apprehension  of bias on the part of the authority making the selection. [683 E-H; 634 A-B; 685 C-D]      A.K. Kraipak  v. Union  of India  A.I.R. 1970  S.C. 150 relied upon.      D.K. Khanna  v. Union  of India  & Ors. [1973] 1 S.L.R. 80: Surinder Nath Goel v. State of Punjab [1973] 1 Ser. L.R. 690 and  M. Ariffudin  v. D.D. Chitaley & Ors. [1973] 2 Ser. L.R. 119 referred to.      2.(iii) The principle which requires that a member of a selection Committee  whose close  relative is  appearing for selection should decline to become a member of the selection committee or  withdraw from  it leaving it to the appointing authority to  nominate another person in his place, need not be applied  in case  of a  constitutional Authority like the Public Service  Commission, whether  Central or  State. If a member of  a  Public  Service  Commission  was  to  withdraw altogether from  the selection  process on the ground that a close relative  of his  is appearing for selection, no other person save a member can be substituted in his place. And it may sometimes  happen that  no other  member is available to take the  place of  such member  and the  functioning of the

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Public Service  Commission may  be affected.  When two  more members of  a Public  Service Commission  are holding a viva voce examination,  they are  functioning not  as individuals but as  the Public Service Commission. Of course, it must be made clear  that when  a close  relative of  a member  of  a Public Service  Commission is  appearing for interview, such member must  withdraw from participation in the interview of that candidate  and must  not take part in any discussion in regard to the merits of that candidate and even the marks or credits given  to that  candidate should not be disclosed to him.                                            [686 G-H;687 A-B]      Javid Rasool  Bhat v.  State of  J.& K. [1984] 2 S.C.C. 632 relied upon.      In the  instant case,  both the  members of the Haryana Public Service  Commission retired  from the  room when  the inter views of their respective 662 relatives were held. Moreover, neither of them took any part in any  discussion in  regard to the merits of his relatives nor is  there anything  to show  that the  marks or  credits obtained by  their respective  relatives at  the  interviews were disclosed  to them. There was no infirmity attaching to the selections made by the Haryana Public Service Commission on  the  ground  that,  though  their  close  relative  were appearing for  the interview,  Shri Raghubar  Dayal Gaur and Shri R.C.  Marya did not withdraw completely from the entire selection process. [688 C-D;]      4.(i) The  Haryana Public  Service Commission  was  not right  in  calling  for  interview  all  the  1300  and  odd candidates who  secured 45  per cent  or more  marks in  the written  examination.   It  is  clear  on  a  plain  natural construction of  Regulation 3  that what  it  prescribes  is merely a  minimum qualification for eligibility to appear at the viva  voce test.  Every candidate  to  be  eligible  for appearing at  the viva voce test must obtain at least 45 per cent marks  in the aggregate in the written examination. But obtaining of  minimum, 45  per cent marks does not by itself entitle a  candidate to  insist that he should be called for the viva  voce test.  There is  no obligation on the Haryana public Service Commission to call for the viva voce test all candidates who  satisfy the minimum eligibility requirement. 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.      In  the   instant  case,  the  Haryana  Public  Service Commission could  not be said to be actuated by any malafide or oblique  motive in  calling for  interview all  the  1300 candidates because  it was common ground between the parties that this  was the  practice which  was  being  consistently followed by  the Haryana  Public Service Commission over the years  and   what  was   done  in   this  case  was  nothing exceptional. Therefore  the selections  made by  the Haryana Public Service  Commission could  not be said to be vitiated merely  on  the  ground  that  as  many  as  1300  and  more candidates representing  more than  20 times  the number  of available vacancies  were called for interview, though it is not right course to follow and not more than twice or at the highest thrice,  the number  of candidates  should have been called for interview. [690 B; E-F, 691 G-H; 629 A-D]      "Theory &  Practice of  Modern  Government"  by  Harman Finer and  Kothari Committee’s  Report  on  the  Recruitment

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Policy &  Selection Methods  for Civil  Services Examination referred to      4.(ii) It  is true  that some  of the  petitioners  did quite well  in the  written examination  but faired badly in the viva voce test and in fact their performance at the viva voce test  appeared to  have deteriorated  in comparison  to their performance in the year 1977-78. But, the Court cannot sit in  judgment over  the  marks  awarded  by  interviewing bodies unless  it is  proved or  obvious that the marking is plainly and  indubitably arbitrary  or affected  by  oblique motives. It  is only if the assessment is patently arbitrary or the  risk of  arbitrariness is  so high that a reasonable person would  regard arbitrariness  as inevitable,  that the assessment of marks at the viva voce test may be regarded as suffering from  the vice  of arbitrariness. [692 F-G; 693 B- C;] 663      In the  instant case, apart from only three candidates, namely, Trilok Nath Sharma, Shakuntala Rani and Balbir Singh one of whom belonged to the general category and was related to  Shri   Raghubar  Dayal  Gaur  and  the  other  two  were candidates for  the seats  reserved for scheduled Castes and were  related  to  Shri  R.C.  Marya,  there  was  no  other candidate in whom the Chair man or any member of the Haryana Public Service  Commission was  interested,  so  that  there could be  any motive  for manipulation  of the  marks at the viva  voce   examination.  There   were  of  course  general allegations of  casteism made  against the  Chairman and the members of  the Haryana  Public Service Commission but these allegations were not substantiated by producing any reliable material before  the Court.  The Chairman and members of the Haryana  Public  Service  Commission  in  fact  belonged  to different castes  and it  was not as if any particular caste was predominant  amongst the  Chairman and  members  of  the Haryana Public  Service Commission  so as  even to  remotely justify  an   inference  that  the  marks  might  have  been manipulated  to   favour  the   candidates  of  that  caste. Therefore, the Division Bench was not right in striking down the selections made by the Haryana Public Service Commission on the ground that they were vitiated by arbitrariness or by reasonable likelihood of bias. [693 D-G]      5.(i)  While   a  written   examination  assesses   the candidate’s knowledge  and intellectual ability, a viva voce test seeks  to assess a candidate’s overall intellectual and personal qualities.  While a written examination has certain distinct advantages  over the  viva voce test, there are yet no  written   tests  which   can  evaluate   a   candidate’s initiative,  alertness,   resourcefulness,   dependableness, cooperativeness,   capacity    for   clear    and    logical presentation, effectiveness  in discussion, effectiveness in meeting and  dealing with  others,  adaptability,  judgment, ability to  make decision, ability to lead, intellectual and moral integrity.  Some of  these qualities can be evaluated, perhaps with some degree of error, by a viva voce test, much depending on  the constitution of the interview Board. There can therefore be no doubt that the viva voce test performs a very useful  function in assessing personnel characteristics and traits  and in  fact,  tests  the  man  himself  and  is therefore regarded  as an  important  tool  along  with  the written examination. [695 F-G; 696 C-D]      5.(ii) There cannot be any hard and fast rule regarding the precise  weight to  be given  to the  viva voce  test as against the  written examination.  It must very from service to service  according to the requirement of the service, the minimum qualification  prescribed, the  age group from which

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the selection  is to  be made, the body to which the task of holding the viva voce test is proposed to be entrusted and a host of  other factors.  It  is  essentially  a  matter  for determination by  experts. The  Court does  not possess  the necessary equipment  and it would not be right for the Court to pronounce  upon it,  unless to use the words of Chinnappa Reddy, J.  in Liladhar’s  case "exaggerated  weight has been given with  proven or  obvious oblique motives." [696 H; 697 A-B]      5. (iii)  The allocation  of as  high a  percentage  of marks as 33.3% in case of ex-service officers and 22-2% test in case  of other  candidates for  the viva voce renders the selection process arbitrary and it does suffer from the vice of arbitrariness.[697 C-D]      Kothari Committee’s  Report on the Recruitment Policy & Selection Methods  for the Civil Services Examination relied upon 664      In the  instant case,  the candidates  selected by  the Haryana  Public   Service    Commission  have  already  been appointed to  various posts  and have  been working on these posts since  the last  about two  years. Moreover the Punjab Civil Service  (Executive Branch)  Rules  1930  under  which 33.3% marks  in case  of ex-service officers and 22.2% marks in case  of other  candidates, have  been allocated  for the viva voce  test have  been in  force for almost 50 years and everyone  has   acted  on  the  basis  of  these  rules.  If selections  made   in  accordance   with  the   prescription contained in  these rules  are now  to be set aside, it will upset a  large number  of appointments  already made  on the basis of such selections and the integrity and efficiency of the  entire  administrative  machinery  would  be  seriously jeopardised. Therefore  this Court  does not  propose to set aside the  selections made  by the  Haryana  Public  Service Commission though  they have  been made  on the  basis of an unduly high  percentage of marks allocated for the viva voce test. [700 B-D]      6.  So  far  as  candidates  in  general  category  are concerned, it  would be  prudent  and  safe  to  follow  the percentage adopted by the Union Public Service Commission in case of  selections to the Indian Administrative Service and other allied services. The percentage of marks allocated for the viva voce test by the Union Public Service Commission in case of selections to the Indian Administrative Services and other allied  service is 12.2, and that has been found to be fair and  just, as  striking a  proper balance  between  the written examination and the viva voce test. This Court would therefore direct  that hereafter in case of selections to be made to  the Haryana  Civil Services  (Executive Branch) and other allied  services, where  the  competitive  examination consists of  a written  examination followed  by a viva voce test, the  marks allocated  for the viva voce test shall not exceed 12.2%  of the  total marks taken into account for the purpose of  selection. The  Court would  suggest  that  this percentage should  also be  adopted by  the  Public  Service Commissions in  other States,  because it  is desirable that there should  be uniformity in the selection process through out the  country and  the practice  followed  by  the  Union Public Service Commission should be taken as a guide for the State Public  Service Commissions  to adopt  and follow.  In case of  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

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in the future shall be on the basis that the marks allocated for the  viva voce  test shall  not exceed  12.2% in case of candidates belonging to the general category and 25% in case of ex-service officers. [700 F-H; 701 A-D]      7. The  Court directed  that  when  selections  to  the Judicial Service  are being made in a State, a sitting Judge of the  High Court  to be  nominated by the Chief Justice of the State  should be invited to participate in the interview as an expert who, by reason of the fact that he is a sitting High Court  Judge, knows  the quality  and character  of the candidates appearing  for the interview and the advice given by him  should ordinarily  be  accepted,  unless  there  are strong and  cogent reasons for not accepting such advice and such strong  and cogent  reasons must be recorded in writing by  the   Chairman  and   members  of   the  Public  Service Commission. [702 E-G] 665

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal Nos. 10160- 10162 of 1983.      From the  Judgment and  Order dated  20.10.1983 of  the Punjab and  Haryana High  Court in Writ Petition No. 2495 of 1983.      P.P.  Rao,   A.  Mariarputham,  K.S.  Kendriya  and  R. Venkatarumani for the Appellants in C.A. No. 10160 of 1983.      G.L. Sanghi,  S.K. Mehta,  P.N. Puri, M.K. Dua and A.K. Vachar for the Appellants in C.A. No. 10161 of 1983.      A.K. Ganguli  for the  Appellants in  C.A. No. 10162 of 1983.      M.K. Ramamurthi, Mahabir Singh, S. Srinivasan and Vijay Hansaria for the Respondents Nos. 6 & 7 in C.A. No. 10160 of 1983.      R.K. Garg,  Mahabir  Singh,  S.  Srinivasan  and  Vijay Hansaria for  the Respondents  Nos. 1,  2 and 16 in C.A. No. 10161 and Respondents Nos. 8 & 9 in C.A. No. 10162 of 1983.      The Judgment of the Court was delivered by      BHAGWATI,  J.   These  appeals  by  special  leave  are directed against  a judgment  of the  Division Bench  of the Punjab &  Haryana High  Court  quashing  and  setting  aside certain  selections  made  by  the  Haryana  Public  Service Commission to  the Haryana  Civil  Service  (Executive)  and other allied  services. The  judgment in  part  proceeds  on surmises and  conjectures and  has made certain uncharitable observations against the Chairman and Members of the Haryana Public Service  Commission without  any warrant and hence it is necessary to set out the facts giving rise to the appeals in some detail.      Sometime in  October 1980  the Haryana  Public  Service Commission invited  applications for recruitment to 61 posts in  Haryana  Civil  Service  (Executive)  and  other  allied Services. The  procedure for recruitment was governed by the Punjab Civil  Service  (Executive  Branch)  Rules,  1930  as applicable in  the State  of Haryana.  Rule 9  clause (1) of these Rules provided that a competitive examination shall be held at  any place  in Haryana  in each year in or about the month of January for the purpose of selection by competition of  as   many  candidates  for  the  Haryana  Civil  Service (Executive), and  others allied  services as the Governor of Haryana may determine and 666 such competitive  examination shall  be held  in  accordance with the  Regulations contained  in Appendix I to the Rules.

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Rule 10  laid down  the conditions for eligibility to appear at the competitive examination but we are not concerned with these conditions  of eligibility  in  the  present  appeals. Regulation I  in Appendix  I provided  that the  competitive examination shall  include compulsory  and optional subjects and every  candidate shall  take all the compulsory subjects and not  more than  three of the optional subjects, provided that ex-serviceman  shall not  be required  to appear in the optional subjects.  The compulsory subjects included English Essay, Hindi  Essay and  General knowledge  carrying in  the aggregate 400 marks and there was also viva-voce examination which was  compulsory and  which carried  200 marks and each optional subject  carried 100  marks. Vide Regulation 5. The result was that the written examination carried an aggregate of  700   marks  for  candidates  in  general  and  for  ex- servicemen, it  carried an  aggregate of  400 marks while in case of  both, the  viva voce examination carried 200 marks. Some argument  has turned  on  the  true  interpretation  of Regulation 3  and hence  it would be desirable to set it out in extenso. It read as follows:           "3. No  candidate shall  be eligible  to appear in      the viva  voce test unless he obtains 45 per cent marks      in the  aggregate of all subjects including at least 33      per cent  marks in each of the language papers in Hindi      (in Devnagri  Script) and  Hindi Essay provided that if      at any examination a sufficient number of candidates do      not obtain  45 per  cent marks  in  the  aggregate  the      Commission  may   at  their   discretion   lower   this      percentage to  not below  40 per  cent for the language      papers remaining unchanged." It appears  that in  response to the advertisement issued by the Haryana Public Service Commission, about 6000 candidates applied  for   recruitment  and   appeared  at  the  written examination held  by the  Haryana Public Service Commission. Out of  about 6000  candidates who  appeared for the written examination, over  1300 obtained more than 45 per cent marks and thus  qualified for  being called  for interview for the viva voce examination. The Haryana Public Service Commission invited all  the 1300  and more candidates who qualified for the viva  voce test, for interview and the interviews lasted for almost  half a  year. It  seems that  though  originally applications were  invited for  recruitment to 61 posts, the number of vacancies rose 667 during the  time taken up in the written examination and the viva voce  test and  test and  ultimately 119  posts  became available for  being filled  and on the basis of total marks obtained in  the written  examination as  well as  viva-voce test, 119  candidates were  selected and  recommended by the Haryana Public  Service Commission  to the State Government. It seems  that there  were some  candidates who had obtained very high  marks at  the written  examination but  owing  to rather poor  marks obtained  by them  in the viva voce test, they could not come within the first 119 candidates and they were consequently  not selected.  They were aggrieved by the selections made by the Haryana Public Service Commission and three out  of them  accordingly filed Civil writ No. 2495 of 1983 in the High Court of Punjab and Haryana challenging the validity of the selections and seeking writ for quashing and setting aside  the same.  They also  claimed that  the marks given in the viva voce test should be ignored and selections should be  made only  on the  basis of the marks obtained by the candidates at the written examination and they contended that if  that was done, they would be within first 119 to be selected by  the Haryana  Public  Service  Commission.  Some

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other candidates  who did  not figure  in the  list  of  119 selected candidates  also filed  Civil  Writ  Petition  Nos. 2317, 3344,  3345, 3434,  3457, 3435 and 3719 of 1983 in the High Court of Punjab and Haryana challenging the validity of the  selections   on  substantially  the  same  grounds  and claiming substantially  the same  reliefs as the petitioners in Civil  Writ Petition  2495 of  1983. The State of Haryana was joined  as 1st  respondent, the  Haryana Public  Service Commission as  2nd respondent  and three  out  of  the  five members  of   the  Haryana  Public  Service  Commission,  as respondents Nos.  3  to  5  in  these  writ  petitions.  The Chairman and  one other  member of  Haryana  Public  Service Commission,  namely,  Shri  B.S.  Lather  and  Shri  Gurmesh Prakash Bishnoi were however not impleaded as respondents in the writ petitions. None of the 119 selected candidates were also joined  as respondents  in the writ petitions. Five our of the  119 selected  candidates thereupon applied for being joined as  respondents to  these writ petitions and on their application, they  were added  as respondent Nos. 6 to 10 in the writ petitions. This was broadly the array of parties in the writ petitions.      Since all  the writ  petitions raised substantially the same issues  and the  pleadings in  the writ  petitions also followed substantially  the same pattern, one writ petition, namely, Civil  Writ Petition 2495 of 1983 was treated as the main writ petition and the principal arguments were advanced in that writ petition, It would therefore be 668 convenient to refer only to Civil Writ Petition 2495 of 1983 and trace  the course  followed by  it  in  the  High  Court because whatever  we say  in regard  to this  writ  petition would apply  equally to  the other writ petitions. So far as Civil Writ Petition No. 2495 of 1983 is concerned, the State of Haryana  filed its counter affidavit in reply to the writ petition  and   so  also  did  the  Haryana  Public  Service Commission. The  five selected candidates who were impleaded as respondents  Nos.  6  to  10  also  filed  their  counter affidavit joining  issue with  the petitioners.  We  do  not propose to  set out here at this stage the averments made in the writ  petition or  the answer to those averments made on behalf of the respondents, because we shall have to refer to them in some detail when we deal with the arguments advanced on behalf  of the  parties. Suffice  it to  state  that  the avernments made  in the  writ petition and the answer sought to be  given on  behalf of  the respondents raised issues of considerable  importance  affecting  not  only  the  Haryana Public Service  Commission but  also all  other State Public Service Commissions and calling for formulation of principle and norms  which  should  guide  all  State  Public  Service Commissions in  the discharge  of their  functions.  We  may briefly  set  out  the  grounds  on  which  the  petitioners challenged the  validity  of  the  selections  made  by  the Haryana Public Service Commission.      There were several grounds on which the validity of the selections made by the Haryana Public Service Commission was assailed on  behalf of the petitioners and a declaration was sought that  they were  entitled to  be selected  as falling within the  first 119  candidates. The first ground was that the Chairman  and members  of  the  Haryana  Public  Service Commission were  not men  of  high  integrity,  calibre  and qualification and  they were appointed solely as a matter of political patronage  and hence  the selections  made by them were invalid.  Secondly, it  was  urged  on  behalf  of  the petitioners that  two of  the selected  candidates,  namely, Mrs. Shakuntala Rani and Balbir Singh were related to one of

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the members of the Haryana Public Service Commission namely, Sh. R.C.  Marya, while  the third  selected candidate namely Trilok Nath Sharma was related to another member namely, Sh. Raghubar Dayal  Gaur and  though these  two members  did not participate in  the interview  of their respective relatives they did  participate in  the interview  of other candidates and the  tactics adopted  by the Chairman and the members of the Commission  was to  give high marks to the relatives and award low  marks to the other candidates so as to ensure the selection of their relatives. This, according to 669 petitioners, vitiated the entire selection process. Thirdly, contended the  petitioners, it  was  contrary  to  the  well settled  practice  followed  by  the  Union  Public  Service Commission and  other  selecting  authorities  to  call  for interview as  many as 1300 candidates even though the number of vacancies  required to  be filled  in was  only 119.  The number of  candidates called  for interview  was  almost  20 times the  number of  vacancies and this not only imposed an intolerable burden  on the Haryana Public Service Commission but also widened the scope for arbitrariness in selection by making it possible for the Haryana Public Service Commission to boost  up or  deflate the  total  marks  which  might  be obtained by a candidate. The argument of the petitioners was that the  number of  candidates to  be called  for interview should not exceed twice or at the highest, thrice the number of vacancies because otherwise the objective test of written examination would  be considerably diluted by the subjective assessment made  in the  vive voce  test and  there would be considerable scope  for  arbitrariness  in  the  process  of selection. This  infirmity, submitted  the petitioners,  had the effect  of invaliding the selections made by the Haryana Public Service  Commission. The  fourth contention  urged on behalf of  the petitioners  was that  the allocation  of 200 marks for the viva voce test out of a total of 900 marks for the generality  of students and a total of 600 marks for ex- servicemen, was  arbitrary and  excessive  and  it  had  the effect of  distorting the  entire process  of  selection  by introducting in  a preponderant  measure subjective  element which could facilitate arbitrariness and manipulation and it was accordingly  unconstitutional  as  involving  denial  of equal opportunity  in  public  employment.  Lastly,  it  was contended on  behalf of  the petitioners  that the viva voce test  was   not  conducted   fairly  and  honestly  and  the selections  made  were  vitiated  on  account  of  nepotism, favouritism and  casteism  and  also  political  motivation. These were  broadly the  grounds of  attack levelled against the validity  of the  selections made  by the Haryana Public Service Commission.      These ground of challenge were sought to be repelled on behalf of the respondents and it was contended that not only was it  not competent  to the  court on  the existing set of pleadings to examine whether the Chairman and members of the Haryana  Public   Service  Commission   were  men   of  high integrity, calibre  and qualification  but also there was no material at  all on  the basis  of  which  the  Court  could possibly come  to the  conclusion that they were men lacking in integrity, calibre or qualification. It was also urged on behalf of  the respondents  that the  Haryana Public Service Commission being 670 a constitutional authority it was not necessary for Sh. R.C. Marya and  Sh. Raghubar  Dayal Gaur  to withdraw  altogether from the  interviews and  they acted correctly in abstaining from  participation   when  their   relatives  came   to  be

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interviewed. This  was  according  to  the  respondents,  in conformity with  the principles  of fair  play and  did  not affect the  validity of the selections. The respondents also contended that  under  Regulation  3  in  Appendix  I  every candidate who  obtained 45  per cent  and more  marks in the written examination  was eligible to be called for interview and the  Haryana Public  Service  Commission  was  therefore justified in  calling for  interview all  the 1300  and  odd candidates, who  qualified by  getting more than 45 per cent marks and  in fact  it would  have been  a denial  of  equal opportunity in  public employment  if some  of them  had not been called  despited having  qualified for  the  viva  voce test. So  far as  the allocation  of 200  marks for the viva voce  test   is  concerned,   it  was  contended  that  this allocation of  200 marks  for the  viva voce  test was  made under the Punjab Civil Service (Executive Branch) Rules 1930 which had  been in  force since over 50 years and no one had raised any objection to it during this long period of half a century and  it had  stood the  test of  time and  could not possibly  be   regarded  as   arbitrary  or  excessive.  The allegation that  the selections  were not  made  fairly  and honestly and  they were  tainted  by  nepotism,  favouritism casteism or  political patronage  was vehemently  denied  on behalf of  the respondents  and it  was contended that there was nothing  to show  that any extraneous considerations had influenced   the    selection   process.   The   respondents accordingly submitted  that the challenge to the validity of the selections  was unfounded  and the  writ petitions  were liable to be dismissed.      The writ petitions came to be heard by a Division Bench of the  High Court of Punjab and Haryana. The Division Bench after hearing  the  parties  at  great  length  delivered  a judgment on  20th October  1983 allowing the writ petitions. The Division Bench held that the Chairman and members of the Haryana Public  Service Commission had been appointed purely on  the   basis  of   political   partisanship   and   caste considerations and  that they  did not satisfy the stringent test  of   being  men   of  high   integrity,  calibre   and qualification. The  Division  Bench  actually  went  to  the length of  alleging  corruption  against  the  Chairman  and members  of   the  Haryana  Public  Service  Commission  and observed that  they were not competent "to validly wield the golden scale  of  viva  voce  test  for  entrants  into  the prestigious public  service." This ground alone, accordingly to the  Division Bench,  was sufficient  to  invalidate  the selections made by 671 the Haryana  Public Service  Commission. The  Division Bench then proceeded  to hold  that it was not enough for Sh. R.C. Marya  and   Sh.  Raghubar   Dayal  Gaur   to  abstain  from participating in  the interview when their relatives came up for the  viva voce test and their presence and participation at the  time  of  interview  of  the  other  candidates  was sufficient to  taint the  selection process  with a  serious infirmity. The  Division Bench  almost  seemed  to  suggest, without there  being the  slightest warrant for it, that "it was a  familiar and deliberate tactic adopted by the members of the  Commission to  abstain  from  participating  in  the interview of  their close  relatives which  in  effect  made patent to the remaining members about their deep interest in them and further that each member of the Commission adjusted the relatives"  of  the  other  and  awarded  low  marks  in interview to  other candidates who had secured high marks in the written  examination in  order to  oust the  latter  and bolster up  the former in the merit list. The Division Bench

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also condemned  out of  hand the  practice  adopted  by  the Haryana Public  Service Commission  of calling for interview all the  candidates who  obtained more than 45% marks in the written examination  and who thus proved themselves eligible for the viva voce test. The view taken by the Division Bench was that the number of candidates to be called for interview should not exceed twice or at the highest, thrice the number of vacancies  required to  be filled  up. The Division Bench also observed  that the allocation of 200 marks for the viva voce test  was arbitrary  and excessive,  as it introduced a large amount  of subjective  discretion in  the  process  of selection which  subordinated the  objective test of written examination and  this,  according  to  the  Division  Bench, constituted  denial   of   equal   opportunity   in   public employment. The  Division Bench  also came to the conclusion that candidates  who had  obtained high marks in the written examination had  been depressed by award of low marks in the viva voce  test and  candidates who  had obtained  low marks were pulled  up by award of high marks in the viva voce test and the entire selection process was vitiated by an "obvious oblique motive"  and tainted by nepotism, favouritism, caste considerations and  political pressures.  The Division Bench on this  view set  aside the  selections made by the Haryana Public Service  Commission and  directed the  Haryana Public Service Commission  and the  State of  Haryana" to forthwith declare the  result of  candidates of  all categories on the basis of  written examination  alone, scrupulously excluding all considerations  of the viva voce test. Respondents No. 6 to 10  thereupon preferred  Civil Appeal  No. 10160  of 1983 with special  leave obtained  from this  Court and similarly with special  leave, Civil  Appeal No.  10161  of  1983  was preferred by 672 the  State   of  Haryana  and  the  Haryana  Public  Service Commission against the judgment of the Division Bench. Since disparaging observations  were made against the Chairman and members of  the Haryana  Public Service  Commission  by  the Division Bench in its judgment, three members of the Haryana Public Service  Commission who were impleaded as respondents No. 3,  4 and  5 in  the writ  petitions  also  applied  for special leave  to appeal  and on  such leave being obtained, preferred Civil  Appeal No.  10161 of  1983. All these three appeals were heard together since they were directed against the same  judgment of  the Division  Bench and we proceed to dispose them of by this common judgment.      The first  question that  arises for  consideration  in these appeals  is whether  the Division  Bench of  the  High Court was  right in  condemning the  Chairman and members of the Haryana  Public Service  Commission as  men  lacking  in integrity, calibre  and qualification  and alleging  corrupt motives against  them. The  answer must  plainly be  in  the negative and  for more  than one reason. In the first place, it  is   common  ground  that  the  Haryana  Public  Service Commission consisted of 5 members including the Chairman and all of  them participated  in the interviews save and except Shri. R.C.  Marya, who  did not participate in the interview of his  daughter-in-law Shakuntala  Rani and  the brother of his son-in-law,  Balbir Singh  and Shri  Raghubar Dayal Gaur who did  not participate  in the interview of the son-in-law of his sister, Trilok Nath Sharma. The Division Bench of the High Court cast serious aspersions on all the members of the Haryana Public Service Commission including the Chairman and observed that  "in the matter of appointments to the Haryana Public Service  Commission, the  actualities  of  work-a-day politics  have  wholly  whittled  away  the  ideal  and  the

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purpose" in  which the  constitutional institution of Public Service Commission  was conceived. The Division Bench of the High  Court   went  to   the  length  of  holding  that  the appointments of  the Chairman  and the member of the Haryana Public  Service   Commission   were   made   "wholly   caste considerations and  political affiliations"  and all of them including the Chairman did not satisfy the stringent test of "men of  high integrity,  calibre and  qualification". These were  highly   disparaging  observations  made  against  the Chairman and member of the Haryana Public Service Commission and cast serious refection on their character and integrity. Surprisingly,  these  condemnatory  observations  were  made against the  Chairman and  all the  members of  the  Haryana public  Service   Commission  without   their  being   party respondents to  the writ  petitions.  Three  members  namely S/Sh. 673 D. R.  Chaudhary, Raghubar  Dayal Gaur  and R. C. Marya were joined as  respondent Nos.  3, 4 and 5 but the Chairman Shri B. S. Lather and another member Shri Gurmesh Parkash Bishnoi were not  impleaded in  the writ  petitions and yet the most damaging observations  were  made  against  them.  This  was clearly in  violation of  the principles of natural justice. The observations  made against  Shri B.  S. Lather  and Shri Gurmesh Prakash Bishnoi cannot therefore be allowed to stand and if these observations are obliterated from the judgment, the entire  super-structure of  the argument  assailing  the constitution of  the Haryana  Public Service Commission as a whole must collapse.      Secondly, these  observations against  the Chairman and members of  the Haryana  Public Service Commission were made without any  factual basis in the pleadings or the evidence. There were  no averments  made in any of the writ petitions, save and  except Civil  Writ  petition  No.  3344  of  1983, regarding the  Chairman or any of the members of the Haryana Public Service  Commission. It was nowhere alleged in any of these writ  petitions that  the Chairman  and members of the Haryana public Service Commission were lacking in integrity, calibre and qualification or that they were appointed on the Haryana Public Service Commission purely on account of caste considerations or  political affiliations  without any merit or  competence.   The  only   averments  in  regard  to  the appointments of  the Chairman  and members  of  the  Haryana Public Service Commission were to be found in paragraph 9 of Civil  Writ  petition  No.  3344  of  1983  where  a  direct allegation was  made that  all the  members of  the  Haryana Public  Service   Commission  including   the  Chairman  had political links  and backing  and  their  appointments  were "only  due  to  political  and  caste  considerations".  The petitioners in this writ petition proceeded to point out the relationship of  the Chairman  and members  of  the  Haryana Public Service  Commission to one or the other member of the political  party  ruling  the  State  at  the  date  of  the respective appointments and sought to draw an inference from such relationship that their appointments were on account of caste  considerations  and  political  linkages  and  merit, competence and  integrity were  sacrificed. The relationship alleged in  paragraph 9  was not  disputed on  behalf of the respondents but  the inference sought to be drawn there from was stoutly  resisted and it was contended that there was no material at  all on the basis of which it could be said that the Chairman  and members  of  the  Haryana  Public  Service Commission were appointed solely "due to political and caste considerations"  without   taking  into   account   calibre, competence or

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674 integrity. In  fact the  State of  Haryana  in  its  counter affidavit seriously  disputed that  the Chairman and members of the  Haryana Public  Service Commission had any political affiliations. Now it is difficult to see how on the basis of a mere averment in paragraph 9 of one of the writ petitions, which averment  was disputed  on behalf  of the respondents, the Division  Bench of the High Court could possibly come to the conclusion  that politics  had played  a major  role  in appointment of  the Chairman  and  members  of  the  Haryana Public Service  Commission and that they were men lacking in integrity, calibre  and qualification,  particularly when no such allegation  was made  by the  petitioners in any of the other writ  petitions. We  do not  think that  the  Division Bench of the High Court was at all justified in drawing from the facts  set out in paragraph 9 of Civil Writ petition No. 3344 of  1983 any  inference that  the Chairman  and members were totally  unfit to  be appointed  on the  Haryana Public Service Commission  or that  they were  not men of integrity calibre and  qualification. Merely because Shri B. S. Lather was the  brother of  Shri  Mahinder  Singh  Lather  who  was allegedly influential  with the  Government of  Haryana when the Janta  Party was  in power or Shri R. C. Marya was close to Shri  Chand Ram who was a Union Minister for State during the Janta  regime or  Shri D.  R. Chaudhary was close to Ch. Devi Lal  former Chief  Minister of  Haryana and belonged to his caste  as well  as to his village or Shri Raghubar Dayal Gaur was close to and belonged to the caste of Shri Chiranji Lal Sharma  who was  a Congress Member of Parliament or Shri Gurmesh Prasad  Bishnoi was  close to and belonged the caste of Shri  Bhajan Lal,  present Chief  Minister of Haryana, it does not  necessarily follow  that they  were not  fit to be appointed but  were appointed  solely on account of personal relationship and caste considerations. The Division Bench of the High  Court proceeded solely on surmises and conjectures and committed  a grievous error in jumping to the conclusion that  the   Chairman  and  members  of  the  Public  Service Commission  were   lacking   in   integrity,   calibre   and qualification  and  were  appointed  solely  on  account  of extraneous considerations.  It is  a very  serious matter to cast aspersions  on the  character, integrity and competence of men  occupying the high office of Chairman and members of a Public  Service Commission  and we wish the Division Bench of the  High Court had acted with care and circumspection in making such  imputation against  the Chairman and members of the Haryana  Public Service Commission, when it was not even specifically alleged  in paragraph  9 of Civil Writ Petition 3344 of  1983 that  the Chairman  and members of the Haryana Public Service  Commission were  unfit to hold the office to which they were appointed or 675 were lacking  in integrity,  character and qualification. We may point  out that  even if the Chairman and members of the Haryana Public  Service Commission were appointed on account of political  and caste  considerations, they could still be men  of   character,  integrity   and  competence   and  the extraneous considerations  which might have weighed with the appointing authority need not necessarily reflect upon their competence,   character   or   fitness.   The   condemnatory observations made  against the  Chairman and  members of the Haryana Public  Service Commission thus not only went beyond the averments  made in  the writ  petitions  but  were  also totally unjustified and unwarranted.      Thirdly, it  is difficult to see how the Division Bench of the  High Court  could possibly undertake an inquiry into

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the question whether the Chairman and members of the Haryana Public Service Commission were men of integrity, calibre and qualification or  not. It  was totally  irrelevant  inquiry, because even  if they were men lacking in integrity, calibre and qualification,  it would  not  make  their  appointments invalid,  so   long  as   the   constitutional   and   legal requirements  in   regard  to  appointment  were  fulfilled. Article  316   of  the   Constitution  makes  provision  for appointment and  term of office of members of a State Public Service Commission. Clause (1) of this Article provides that the  Chairman   and  members   of  a  State  Public  Service Commission shall  be appointed  by the Governor of the State and the proviso to that clause enacts that "as nearly as may be  one   half  of  the  members  of  every  Public  Service Commission shall  be persons  who  at  the  dates  of  their respective appointments  have held  office for  at least ten years" under the Government of a State. Clause(2) of Article 316 declares  that  a  member  of  a  State  Public  Service Commission shall  hold office  for a  term of six years from the date  on which  he enters  upon his  office or  until he attains the  age of  sixty two years, which ever is earlier. Article 319  lays down  inter alia  that on  ceasing to hold office, the  Chairman of  State  Public  Service  Commission shall  not   be  eligible   for  any  employment  under  the Government of  India or  the Government of a State, save and except that  of Chairman  or any  other member  of the Union Public Service Commission and similarly, a member of a State Public Service  Commission. These are the only provisions in the Constitution  bearing on the appointment of Chairman and members of a State Public Service Commission. Now concededly none of  these constitutional  provisions  was  violated  in making appointments of the 676 Chairman  and   members  of   the  Haryana   Public  Service Commission nor  was any  legal provision  breached  and  the appointments of  the Chairman  and members  of  the  Haryana Public  Service  Commission  were  in  conformity  with  the constitutional and  legal requirements.  If that  be so,  it passes our  comprehension as  to how the appointments of the Chairman  and   members  of   the  Haryana   Public  Service Commission could be regarded as suffering from any infirmity or any selections made by them could be said to be vitiated, merely on  the ground  that they were not, in the opinion of the Division Bench of the High Court possessed of integrity, calibre  or   qualification.  We  may  take  an  analogy  to illustrate the point we are making. Suppose a District Judge is appointed  by the  Governor of  the State in consultation with the  High Court  in accordance with the requirements of Article 233  and the  appropriate rules made in that behalf. Can a  judgment delivered  by him  be assailed as invalid on the ground  that he has not the requisite integrity, calibre or qualification  ? The  judgment may  be set aside if it is wrong but  not because it is given by a Judge who is lacking in   integrity,   calibre   or   qualification.   Similarly, selections made  by the  Chairman and members of the Haryana Public Service  Commission may  be quashed if they are found to be vitiated by the influence of extraneous considerations or are  made in  breach of  the rules,  but they  cannot  be invalidated merely  by showing in a general sort of way that they were  not men  possessed of  high integrity, calibre or qualification.      Lastly, we  do not think that the Division Bench of the High Court  was justified in going into the question whether the Chairman  and members  of  the  Haryana  Public  Service Commission were appointed an account of caste considerations

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and  political  patronage  or  were  lacking  in  integrity, calibre  or   qualification,  when  the  validity  of  their appointments was  not challenged  in the  writ petitions nor was any relief claimed for setting aside their appointments. The validity  of their  appointments could not be questioned collaterally  while   considering  the   challenge  to   the selections made by them. This view receives support from the observations of Chinnappa 677 Reddy, J.  speaking on  behalf of the Court in C. Ranga Raju v. State  of Andhra  Pradesh [1981] 3 S.C.R. 474. There, the learned Judge  pointed out:  "The defective appointment of a de facto  judge may  be questioned  directly a proceeding to which he  be a  party but  it  cannot  be  permitted  to  be questioned in  a litigation between two private litigants, a litigation which  is of  no concern  or consequence  to  the judge except  as a  judge. Two  litigants  litigating  their private title  cannot be  permitted to  bring in  issue  and litigate upon  the title of a judge to his office. Otherwise as soon as a judge pronounces a judgment a litigation may be commenced for  a  declaration  that  the  judgment  is  void because the judge is no judge. A judge’s title to his office cannot be  brought into  jeopardy in that fashion. Hence the rule against  collateral  attack  on  validity  of  judicial appointments."      We wholly  endorse these observations and conclude that the principle  underlying these observations must be held to be equally  applicable in  the present case and the title of the Chairman  and members  of  the  Haryana  Public  Service Commission cannot  be allowed  to be  placed in  jeopardy in proceeding for challenging the selections made by them. This ground of attack against the validity of the selections must therefore be rejected.      That takes  us to the next ground of attack which found favour with  the Division  Bench of  the High Courts, namely that the  participation of Shri R.C. Marya and Shri Raghubar Dayal Guar  in the process of selection introduced a serious infirmity in  the selections. It was not disputed and indeed on the record it could not be, than when the close relatives of Shri  R.C. Marya and Shri Raghubar Dayal Guar came up for interview, but,  according to the Division Bench of the High Court, such  limited withdrawal  from participation  was not enough and  both the  members, said the Division Bench ought to have withdrawn from the selection process altogether. The Division Bench  of the High Court relied heavily on the fact that Trilok  Nath Sharma,  who was  the  son-in-law  of  the sister of Shri Raghubar Dayal Guar obtained 160 marks out of 300 in the viva voce test while Shakuntala Rani daughter-in- law of  Shri. R.C. Marya obtained 131 marks and Balbir Singh brother of  the son-in-law  of Shri  R.C. Marya obtained 130 marks and observed that "these 678 admitted facts  are obviously  telltale". The Division Bench went to  the length  of imputing nepotism and favouritism to the Chairman  and members  of  the  Haryana  Public  Service Commission by  observing that  each member  of  the  Haryana Public Service  Commissions adjusted  the relatives  of  the others and  awarded low  marks in the interview to the other candidates with  a view to ousting the latter and bolstering up the  former in  the merit  list. We are pained to observe that such  a serious  aspersion should have been cast on the Chairman  and   members  of   the  Haryana   Public  Service Commission  without   any  basis  or  justification.  Merely because Trilok  Nath Sharma  obtained 160  marks, Shakuntala Rani obtained 131 marks and Balbir Singh obtained 130 marks,

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no inference  can necessarily be drawn that these high marks were given  to them  in viva  voce examination  undeservedly with  a   view  to  favouring  them  at  the  cost  of  more meritorious candidates.  There is nothing to show that these three candidates who happened to be related to Shri Raghubar Dayal Guar  and Shri  R.C. Marya  were not  possessed of any requisite calibre  or competence or their performance at the viva voce  examination did  not justify the marks awarded to them. The  only circumstance  on which  the  Division  Bench relied for  raising the  inference that such high marks were given to  these three  candidates, not  on merits, but as an act of nepotism with a view to unduly favouring them so that they can some within the range of selection, was that out of these three  candidates, two were related to Shri R.C. Marya and one  was related  to  Shri  Raghubar  Dayal  Gaur.  This inference,  we   are  constrained  to  observe,  was  wholly unjustified. We  cannot help  remarking  that  the  Division Bench indulged  in surmises  and conjectures in reaching the conclusion that high marks were given unjustifiably to these three candidates at the viva voce examination with a view to pushing them  up and  low marks  were deliberately  given to other more  meritorious candidates  with a  view to  pushing them down and thus facilitating the selection of these three candidates who  would not  otherwise have  come  within  the range of  selection. We fail to appreciate what is the basis on which  the Division  Bench could observe that these three candidates got  high marks at the viva voce examination only because they  were  elated  to  Shri  R.C.  Marya  and  Shri Raghubar Dayal  Gaur. Can a relative of a member of a Public Service Commission,  Central or State, not get high marks at the viva  voce examination  on his own merit? Must he always get low  marks, so  that if  high marks  are awarded to him, that would  necessarily be  attributed to  his  relationship with the member of the Public Service Commission? 679      The Division  Bench sought  to  draw  support  for  its inference from  an article written by Shri D.R. Chaudhari, a member of  the Haryana  Public Service  Commission,  who  is arrayed as  respondent No.  3 in  the  writ  petition.  This article was  captioned  "Public  Service  Commissions  under Pressures" and  was  written  by  Shri  D.R.  Chaudhari  and published in  the issue  of Tribune  dated 13th  March 1981. Shri D.R.  Chaudhari was  appointed a  member of the Haryana Public Service  Commission on 2nd December 1977. He had been such member for over three years at the time of writing this article.      He pointed out in this article, and we are quoting here a passage  which  has  been  strongly  relied  upon  by  the Division Bench:           "With political  morality in  our  system  at  its      lowest abb,  the politicians  are always  in a hurry to      pack the P.S. Cs with such persons who would be pliable      tools in  the matter  of recruitment.  Academic  worth,      intellectual calibre,  experience of  men and  matters,      and integrity are of no relevance. What is important is      a person’s "dependability."           Narrow  caste,   communal  and   regional   issues      dominate Indian Politics today and these considerations      override  questions   of  talent   in  the   matter  of      recruitment.  In  the  process  a  member  with  little      intellectual calibre  and less integrity begin to serve      his own  interests a those of his political benefactor,      No vender  there is  a widespread feeling in the States      (mercifully, with the U.P.S.C. as a possible exception)      that every post carries a price tag.

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         We have  reached a  state when the composition and      functioning  of   our  P.S.  Cs  should  be  critically      evaluated. This  is necessary if the institution has to      survive as a meaningful body. Its functioning should be      brought 680      under public  gaze. At  present  there  is  a  halo  of      secrecy  surrounding  the  P.S.C.  and  secrecy  always      breeds corruption.  It would  be suicidal  to treat the      P.S.C. as  a sacred  cow. There  is nothing more sacred      than  the  public  interest  and  the  public  interest      demands that  the functioning  of the P.S. Cs should be      widely debated  through the  press and  other forums. I      invite  my,  colleagues  of  the  P.S.  Cs  and  public      spirited individuals to join the debate." We may  reasonably assume  that a  person who  write such an article would  never be  a party to any manipulations in the selection of  candidates  nor  would  he  debase  or  demean himself by  indulging in or even lending his support to, any acts  of   nepotism  or   favouritism.  It  would  be  quite legitimate to  infer that  if there  had been any attempt to manipulate the  marks at  the viva  voce examination  with a view to  favouring  the  undeserving  or  pushing  down  the meritorious,  Shri   D.R.  Chaudhuri  would  have  protested against such improper and unholy attempt. The very fact that Shri D.R. Chaudhari not only did not register any dissent in regard to the marks awarded at the viva voce examination but actually agreed  with the  evaluation made by his colleagues shows that  there was nothing wrong with the marking nor was there any  manipulation  of  marks  indicating  nepotism  or favouritism. In  fact Shri D.R. Chaudhari filed an affidavit in these  proceedings  where  he  candidly  said  that  this article written by him was based on his direct experience of working in  the Haryana  Public Service  Commission  and  he proceeded to add boldly and courageously:           "As a member of H.P.S.C., I noticed various forces      trying to  undermine the independent functioning of the      Commission.  What  irked  me  most  was  the  political      interference. An  attempt  was  made  to  convert  this      august body  into a  petty government  department where      politicians’ writ could rung large. Besides this, caste      lobbies and  money bags  were active  to influence  its      decisions at every stage.           I was  in a  state of agony. I decided to take the      matter to the public through the medium of the press. I      knew 681      that I  would incur the wrath of the powers that be and      dismay caste lobbies and money bags.           I took  a calculated  risk and  wrote the  article      under question.  It did  infuriate the political posses      as is evident from a news item published in the Tribune      dated June  25, 1981  (clipping attached).  But at  the      same time  it served  the purpose  I had  in  mind.  It      started a  public debate.  It created  a furore. It was      read and  debated widely.  A number  of letters  to the      Editor appeared  in the Tribune. It also figured in the      session of the Haryana Vidhan Sabha.           The  article   had  a  desired  effect.  Pressures      ceased. Political operators and other manipulators were      put on  the alert. As such I did not feel the necessity      of writing  again on  the same issue though I continued      writing on other matters." Then speaking  specifically about  the viva voce examination held by the Haryana Public Service Commission in the present

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case, Shri D.R. Chaudhari stated:           "The interviews  for the recruitment of H.C.S. and      Allied Services, which is the subject of writ petitions      in the  Hon’ble Punjab  and Haryana  High  Court,  were      conducted about  two years after the publication of the      article.  No  pressure,  political  or  otherwise,  was      exercised on  me, nor  to the  best of my knowledge, on      any other  colleague of  mine in  the commission during      the course of this recruitment."      There is no reason why this statement made by Shri D.R. Chaudhari should  not be  believed. It  is indeed surprising that the  Division Bench  accepted readily  what was said by Shri D.R.  Chaudhari in  the article  written by him on 13th March, 1981  but for  some inexplicable  reason, refused  to believe the  same Shri  D.R. Chaudhari  when he  stated that this article  had the  desired effect  and on account of the exposure made  in  this  article,  pressures,  political  or otherwise, ceased  so far  as the functioning of the Haryana Public 682 Service Commission was concerned and in awarding of marks at the  viva   voce  examination,  no  pressure,  political  or otherwise, was  exercised on  Shri D.R. Chaudhari nor to the best of  his knowledge,  on any  of his other colleagues. We accept what  has been  stated by  Shri D.R. Chaudhari in his affidavit and  disapprove of  the observation  made  by  the Division Bench  that high  marks were  undeservedly given to the three  candidates related  to Shri  R.C. Marya  and Shri Raghubar Dayal Gaur and low marks were deliberately given to the meritorious  candidates with  a view to manipulating the selection of the former at the cost of the latter. We are of the view  that there was no material whatsoever on record to justify such  observation on the part of the Division Bench. In fact,  far from  there being  any material  supportive of such observation.  We find  that there  is one circumstance, which, in our opinion, completely militates against the view taken by  the Division  Bench and  that circumstance is that the  marks   obtained  by  the  candidates  at  the  written examination were not disclosed to the members of the Haryana Public  Service   Commission  who   held   the   viva   voce examination. If the members, who interviewed the candidates, did not  know what were the marks obtained by the candidates at the  written examination, it is difficult to see how they could  have   manipulated  the   marks  at   the  viva  voce examination with  view to  pushing up  the three  candidates related to  Shri R.C.  Marya and Shri Raghubar Dayal Gaur or any other  candidates of  their choice  so as  to bring them within the range of selection.      But the  question still  remains whether the selections made by  the Haryana Public Service Commission could be said to be  vitiated on  account of the fact that Shri R.C. Marya and Shri  Raghubar Dayal  Gaur participated in the selection process, though  Trilok Nath  Sharma who was related to Shri Raghubar Dayal  Gaur and  Shakuntala Rani  and Balbir  Singh both  of   whom  were  related  to  Shri  R.C.  Marya,  were candidates for  selection. It  is undoubtedly true that Shri Raghubar Dayal  Gaur did  not participate  when Trilok  Nath Sharma came  up for  interview and similarly Shri R.C. Marya did not  participate when  Shakuntala Rani  and Balbir Singh appeared for  interview at  the viva  voce examination. But, according to  the petitioners,  this was  not sufficient  to wipe out  the blemish  in the  process of  selection for two reasons: firstly,  because Shri R C. Marya and Shri Raghubar Dayal Gaur  participated in  the  interviews  of  the  other candidates and  that gave  rise to a reasonable apprehension

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in 683 the mind  of the  candidates that  Shri R.C.  Marya and Shri Raghubar Dayal  Gaur might  tend to depress the marks of the other candidates  with a  view to  ensuring the selection of the candidates  related to  them and secondly, because there could  be   reasonable  apprehension  in  the  mind  of  the candidates that  the other  members of  the  Haryana  Public Service Commission interviewing the candidates might, out of regard for  their colleagues,  tend to  give higher marks to the  candidates   related  to  them,  The  argument  of  the petitioners was  that the  presence of  Shri R.C.  Marya and Shri Raghubar  Dayal Gaur on the interviewing committee gave rise to  an impression  that there was reasonable likelihood of bias  in favour  of the  three candidates related to Shri R.C. Marya  and Shri  Raghubar Dayal  Gaur and  this had the effect of  vitiating  the  entire  selection  process.  This argument was  sought to  be supported  by the petitioners by relying on the decisions reported in D.K. Khanna v. Union of India &  Ors. Surinder  Nath Goel  v. State of Punjab and M. Ariffudin v.  D.D. Chitaley  & Ors.  We do  not  think  this argument can  be sustained  and for  reasons, which we shall presently state, it is liable to be rejected.      We agree  with the  petitioners that  it is  one of the fundamental principles  of our jurisprudence that no man can be a  Judge in  his  own  cause  and  that  if  there  is  a reasonable likelihood  of bias  it is  "in  accordance  with natural justice  and common sense that the justice likely to be so  biased should  be incapacitated  from  sitting".  The question is  not whether  the judge is actually biased or in fact  decides   partially,  but  whether  there  is  a  real likelihood of  bias. What is objectionable in such a case is not that the decision is actually tainted with bias but that the  circumstances  are  such  as  to  create  a  reasonable apprehension  in   the  mind  of  others  that  there  is  a likelihood  of   bias  affecting  the  decision.  The  basic principle underlying this rule is that justice must not only be done  but must  also appear  to be done and this rule has received wide  recognition  in  several  decisions  of  this Court. It  is also  important to  note that this rule is not confined to  cases where  judicial power  stricto  sensu  is exercised. It  is appropriately  extended to all cases where an independent  mind has  to be  applied to arrive at a fair and just  decision between  the  rival  claims  of  parties. Justice is not the 684 function of  the courts  alone; it  is also  the duty of all those who  are expected  to decide fairly between contending parties.  The   strict  standards   applied  to  authorities exercising judicial  power are being increasingly applied to administrative bodies, for it is vital to the maintenance of the rule of law in a welfare state where the jurisdiction of administrative bodies in increasing at a rapid pace that the instrumentalities  of   the  State  should  discharge  their functions in  a fair  and just manner. This was the basis on which the  applicability of  this rule  was extended  to the decision-making process of a selection committee constituted for selecting officers to the Indian Forests Service in A.K. Kraipak v. Union of India happened in this case was that one Naquisbund, the  acting Chief  Conservator of Forests, Jammu and Kashmir  was a  member of  the Selection Board which had been set  up to select officers to the Indian Forest Service from those  serving in  the Forest  Department of  Jammu and Kashmir. Naquisbund  who was a member of the Selection Board was also  one of  the candidates for selection to the Indian

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Forest Service. He did not sit on the Selection Board at the time when  his name  was considered for selection but he did sit  on   the  Selection   Board  and  participated  in  the deliberations when  the names  of his  rival  officers  were considered for  selection and took part in the deliberations of the  Selection Board  while preparing  the  list  of  the selected candidates  in order of preference. This Court held that the  presence of  Naquishbund vitiated the selection on the ground  that there  was reasonable  likelihood  of  bias affecting the  process of  selection. Hegde,  J. speaking on behalf of  the Court  countered the argument that Naquisbund did not  take part  in the  deliberations of  the  Selection Board when his name was considered, by saying:           "But then  the very  fact that  he was a member of      the Selection  Board must  have its  own impact  on the      decision of  the Selection  Board. Further, admittedly,      he participated  in the  deliberations of the Selection      Board  when   the  claims   of  his   rivals  ...  were      considered. He was also party to the preparation of the      list of  selected candidates in order of preference. At      every stage of his participation in the deliberation of      the selection  board, there  was a conflict between his      interest and  duty .  ...  The  real  question  is  not      whether he  was biased.  It is  difficult to  prove the      state of mind of a person. Therefore what we 685      have to  see is  whether there is reasonable ground for      believing that  he  was  likely  to  have  been  biased      .......... There  must be  a reasonable  likelihood  of      bias. In  deciding the question of bias we have to take      into consideration  human  probabilities  and  ordinary      course of human conduct." This  Court   emphasised  that   it  was  not  necessary  to establishes as  but it  was  sufficient  to  invalidate  the selection process  if it  could  be  shown  that  there  was reasonable likelihood  of bias.  The likelihood  of bias may arise on  account of  proprietory interest  or on account of personal  reasons,  such  as,  hostility  to  one  party  or personal friendship  or family  relationship with the other. Where reasonable  likelihood of  basis  is  alleged  on  the ground of  relationship, the  question would always be as to how close  is the  degree of relationship or in other words, is the  nearness of relationship so great as to give rise to reasonable apprehension of bias on the part of the authority making the selection.      The High  Court of  Himachal Pradesh  in D.K.  Khanna’s case (supra)  drawing inspiration  from A.K. Kraipak’s case, held  that  where  one  of  the  members  of  the  Committee constituted for selecting members of the State Civil Service for promotion  to the Indian Administrative Service, was the son-in-law of a candidate who was competing for inclusion in the  list  of  selected  candidates,  the  entire  selection process was  vitiated by the presence of such member, though he did not take any part in the consideration of his father- in-law’s candidature  or in  any manner try to influence his colleagues in  regard to  his father-in-law.  The High Court observed that the degree of relationship in this case was so close as  to reasonably  give an  impression  to  the  other candidates that  there was  a real likelihood of the son-in- law espousing  the cause of his father-in-law as his own. So also in Surinder Nath Goel’s case (supra), the High Court of Punjab and  Haryana took  the same  view where  it was found that two  of the  candidates appearing  for  selection  were related to  one of  the members  of the Selection Committee. The same  approach was  adopted by  the High Court of Andhra

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Pradesh in  M. Aiffurdin’s  case (supra)  where one  of  the members of  the Andhra Pradesh Public Service Commission who sat on  the Commission and participated in the selection for the posts  of Professor  and Lecturer  in the Andhra Pradesh Technical Education  Service, was a partner with some of the candidates appearing  for the selection and it was held that the 686 entire selection  process was  vitiated, because  there  was clearly reasonable  likelihood of  bias in  favour of  those candidates on  the part of such member of the Commission. We may  point  out  that  so  far  as  this  last  decision  is concerned, it  does  not  appear  that  the  member  of  the Commission who  was a  partner with  some of the candidates, withdrew when  those candidates  came to  be interviewed and did  not   participate  in   the  consideration   of   their candidature.      We must straightaway point out that A.K. Kraipak’s case is a  landmark in  the development of administrative law and it has  contributed in  a large measure to the strengthening of the  rule of  law in  this country.  We would not like to whittle down  in the  slightest measure  the vital principle laid down  in this decision which has nourished the roots of the rule  of law  and injected  justice and  fair play  into legality.  There  can  be  no  doubt  that  if  a  selection committee  is  constituted  for  the  purpose  of  selecting candidates on merits and one of the members of the Selection Committee is  closely related  to a  candidate appearing for the selection, it would not be enough for such member merely to withdraw  from participation  in  the  interview  of  the candidate related  to him  but he  must withdraw  altogether from the entire selection process and ask the authorities to nominate another  person  in  his  place  on  the  selection committee, because  otherwise all  the selections made would be vitiated  on account  of reasonable  likelihood  of  bias affecting the  process of  selection. But the situation here is a little different because the selection of candidates to the Haryana Civil Service (Executive) and allied services is being made  not by  any Selection  Committee constituted for that purpose  but it  is being  done by  the Haryana  Public Service Commission  which  is  a  Commission  set  up  under Article 316  of the  Constitution. It  is a Commission which consists of a Chairman and a specified member of members and is a  Constitutional Authority.  We do  not think  that  the principle which  requires  that  a  member  of  a  Selection Committee whose  close relative  is appearing  for selection should decline to become a member of the selection committee or withdraw  from it  leaving it to the appointing authority to nominate  another person in his place, need be applied in case of  a Constitutional  Authority like the Public Service Commission, whether  Central or  State. If  a  member  of  a Public Service  Commission were  to withdraw altogether from the selection process on the ground that a close relative of his is  appearing for  selection, no  other  person  save  a member can be substituted in his place. And it may sometimes happen that  no other  member is available to take the place of such 687 member and  the functioning of the Public Service Commission may be  affected. When  two or  more  members  of  a  Public Service Commission are holding a viva voce examination. they are functioning not as individuals but as the Public Service Commission. Of  course, we  must make  it clear  that when a close relative of a member of a Public Service Commission is appearing for  interview, such  member  must  withdraw  from

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participation in  the interview  of that  candidate and must not take  part in  any discussion in regard to the merits of that candidate  and even  the marks or credits given to that candidate should not be disclosed to him. Chinnappa Reddy, J observed to the same effect in Javid Rasool Bhat v. State of J and  K while  dealing with  a similar question which arose before him for consideration:           "The procedure  adopted by the Selection Committee      and the  member concerned  was in accord with the quite      well-known and  generally accepted procedure adopted by      the Public  Service Commission  everywhere. It  is  not      unusual  for  candidates  related  to  members  of  the      Service Commission or Other Selection Committee to seek      employment.  Whenever  such  a  situation  arises,  the      practice generally  is  for  the  member  concerned  to      excuse  himself   when  the   particular  candidate  is      interviewed. We  notice that  such a situation had also      been noticed  by this Court in the case of Nagarajan v.      State of  Mysore where  it was  pointed out that in the      absence of  mala fides,  it would  not be  right to set      aside  the   selection  merely   because  one   of  the      candidates happened  to be  related to  a member of the      Selection   Committee    who   had    abstained    from      participating  in  the  interview  of  that  candidate.      Nothing  unusual  was  one  by  the  present  Selection      Committee. The  girl’s father  was not present when she      was interviewed.  She was  one  among  several  hundred      candidates. The  marks obtained  by her  in the written      test were not even known when she was interviewed......      In the  case before  us, the  Principal of  the Medical      College, Srinagar, dissociated himself from the written      test and  did not  participate in  the proceedings when      his daughter was interviewed. When the other candidates      were interviewed,  he did  not know  the marks obtained      either by his daughter or by any of the candi- 688      dates. There  was no occasion to suspect his bona fides      even remotely.  There was not even a suspicion of bias,      leave alone  a reasonable likelihood of bias. There was      no violation of the principles of natural justice." We wholly  endorse there  observations. Here  in the present case it  was common  ground between  the parties  that  Shri Raghubar Gaur  Dayal Gaur  did not  participate  at  all  in interviewing Trilok Nath Sharma and likewise Shri R.C. Marya did not  participate at  all when Shakuntala Rani and Balbir Singh came  to be  interviewed and  in fact,  both  of  them retired  from   the  room   when  the  interviews  of  their respective relatives  were held.  Moreover, neither  of them took any  part in  any discussion in regard to the merits of his relatives  nor is  there anything to show that the marks or credits  obtained by  their respective  relatives at  the interviews were  disclosed to  them. We are therefore of the view that there was no infirmity attaching to the selections made by  the Haryana Public Service Commission on the ground that, though  their close  relative were  appearing for  the interview, Shri  Raghubar Dayal Gaur and Shri R.C. Marya did not withdraw  completely from  the entire selection process. This  ground   urged  on  behalf  of  the  petitioners  must therefore be rejected.      There was  also one other contention which found favour with the  Division Bench  in support  of its conclusion that there was reasonable likelihood of bias vitiating the "whole gamut of  the selection  process". This contention was based on the fact that though only 61 vacant posts were advertised for being  filled up, over 1300 candidates representing more

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than 20 times the number of available vacancies, were called for the  viva voce  examination. The  Division Bench pointed out that  in order  to have  a proper  balance  between  the objective  assessment  of  a  written  examination  and  the subjective assessment  of personality  by a  viva voce test, the candidates  to be  called for interview at the viva voce test should  not exceed  twice or at the highest, thrice the number of  available vacancies.  This practice  of confining the number of candidates to be called for interview to twice or at  the highest,  thrice the  number of  vacancies to  be filled up,  was being  followed consistently  by  the  Union Public  Service   Commission  in   case  of  Civil  Services Examination, but  in the present case, observed the Division Bench, a  departure was  made by  the Haryana Public Service Commission and  candidates numbering  more than 20 times the available vacancies  were called  for interview. The result, according to the Division Bench, was that the area of 689 arbitrariness  in   the  viva  voce  test  was  considerably enlarged and  even a  student who  had got poor marks in the written  examination   and  who   having  regard  to  dismal performance at the written examination did not deserve to be called for interview, could get a chance of being called and he could  then be pulled up within the range of selection by awarding unduly  high marks  at the  viva voce  examination. This conclusion  was sought to be buttressed by the Division Bench by  relying on  a comparison  of the marks obtained by some of  the petitioners  in the  written examination and at the viva voce test. This comparison showed that eight of the petitioners secured  "a percentage  of around  60  per  cent rising up  to a  highest of  68.5 per  cent" in  the written examination, but  they  were  awarded  "a  disastrously  low percentage of  marks in  the viva voce ranging from the rock bottom of  13 per cent to 21 per cent", making it impossible for them  to bridge  the difference so as to be able to come within the  range of  selection. How  could  such  brilliant candidates who  had done  so well in the written examination fare so poorly in the viva voce test that they could not get more than  20 per  cent marks, asked the Division Bench? The Division Bench also pointed out that some out of these eight petitioners had  appeared in  an earlier examination held in 1977-78 and  at the  viva voce  test held at that time. they had secured  more than  50 to  55 per  cent marks and it was difficult to  believe that  during the next three succeeding years, they  had deteriorated  to such  an extent  that they slumpted down  to 20 per cent marks. The Division Bench also analysed the  comparative marks  obtained by  the  first  16 candidates who  topped the  list in  the written examination and noted that on account of the poor marks obtained by them at the  viva voce  test, 10  out of these 16 candidates were "knocked out  of the  race" because  their ranking,  on  the basis of  the total  marks obtained  by them  in them in the written examination  and the  viva voce test, went for below 61 and  only 4  out of the remaining 6 could rank within the first 16 so as to be eligible for appointment in the Haryana Civil Service (Executive Branch) which is a superior service compared to  other allied  services. It was also pointed out by the  Division Bench  that out of 16 candidates who topped the list  on the  basis of  combined marks  obtained in  the written and  viva voce  examinations  and  who  consequently secured appointment  to posts  in the  Haryana Civil Service (Executive Branch),  12 could make it only on account of the high marks  obtained by  them at  the viva voce examination, though they  were not  high up  in ranking  in  the  written examination. On the basis of

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690 these facts  and circumstances, the Division Bench concluded that the  petitioners had  discharged the  burden of showing that there  was reasonable  likelihood of bias vitiating the entire selection process.      We do  not think  we can  agree  with  this  conclusion reached by  the Division  Bench. But whilst disagreeing with the conclusion,  we  must  admit  that  the  Haryana  Public Service Commission  was not  right in  calling for interview all the  1300 and  odd candidates  who secure 45 per cent or more marks  in  the  written  examination.  The  respondents sought to  justify the  action of the Haryana Public Service Commission by  relying on  Regulation 3  of the  Regulations contained  in   Appendix  1  of  the  Punjab  Civil  Service (Executive Branch)  Rules 1930  which were applicable in the State of Haryana and contended that on a true interpretation of that  Regulation, the  Haryana Public  Service Commission was bound  to call  for interview  all  the  candidates  who secured a  minimum of  45 per cent marks in the aggregate at the written  examination. We do not think this contention is well founded. A plain reading of Regulation 3 will show that it is  wholly  unjustified.  We  have  already  referred  to Regulation 3  in an earlier part of the judgment and we need not reproduce  it again.  It is  clear on  a  plain  natural construction of  Regulation 3  that what  it  prescribes  is merely a  minimum qualification for eligibility to appear at the viva  voce test.  Every candidate  to  be  eligible  for appearing at  the viva voce test must obtain at least 45 per cent marks  in the aggregate in the written examination. But obtaining of  minimum 45  per cent  marks does not by itself entitle a  candidate to  insist that he should be called for the viva  voce test.  There is  no obligation on the Haryana Public Service  Commission to  call for  the viva  test  all candidates who  satisfy the minimum eligibility requirement. It is  open to  the Haryana Public Service Commission to say that out  of the  candidates  who  satisfy  the  eligibility critarion of  minimum 45  per  cent  marks  in  the  written examination, only  a limited number of candidates at the top of the  list shall  be called  for interview.  And this  has necessarily to  be done because otherwise the viva voce test would reduced  to a farce. It is indeed difficult to see how a viva  voce test  for properly and satisfactorily measuring the personality  of a  candidate can be carried out, if over 1300 candidates  are to  be interviewed for recruitment to a service. 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  candidates,  the  interview  must  take anything between 10 to 30 691 minutes. In  fact, Herman  Finer in  his book on "Theory and Practice  of   Modern  Government"   points  out  that  "the interview should  last at  least half  an hour".  The  Union Public Service  Commission making  selections for the Indian Administrative  Service  also  interviews  a  candidate  for almost half an hour. Only 11 to 12 candidates are called for interview in  a day of 51/2 hours. It is obvious that in the circumstances,  it  would  be  impossible  to  carry  out  a satisfactory viva  voce test  if such  a large  unmanageable number of  over 1300  candidates are  to be interviewer. The interviews would  then tend  to be  casual, superficial  and sloppy and  the assessment made at such interviews would not correctly reflect the true measure of the personality of the candidate. Moreover,  such a  course would widen the area of arbitrariness, for  even a  candidate who is very much lower

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down in  the list  on the  basis of  marks obtained  in  the written examination,  can, to  borrow an  expression used by the  Division   Bench,  ’gate-crash’   into  the   range  of selection, if  he is  awarded unduly  high marks at the viva voce examination.  It has therefore always been the practice of  the   Union  Public   Service  Commission  to  call  for interview, candidates  representing not  more than  twice or thrice  the   number   of   available   vacancies.   Kothari Committee’s Report  on the ’Recruitment Policy and Selection Methods for the Civil Services Examination’ also points out, after an  indepth examination  of the  question as  to  what should  be  the  number  of  candidates  to  be  called  for interview :           "The  number   of  candidates  to  be  called  for      interview, in  order of  the  total  marks  in  written      papers, should  not exceed,  we think, twice the number      of vacancies to be filled.. ." Otherwise the  written examination  which is definitely more objective in  its assessment  than the  viva voce  test will lose all  meaning and  credibility and  the viva  voce  test which is  to some extent subjective and discretionary in its evaluation will become the decisive factor in the process of selection. We  are therefore of the view 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. The Haryana Public Service Commission in the present case called for  interview   all  candidates  numbering  over  1300  who satisfied the minimum eligibility requirement by securing a 692 minimum of  45 per cent marks in the written examination and this was  certainly not  right, but we may point out that in doing so  the Haryana Public Service Commission could not be said to  be actuated  by any  malafide  or  oblique  motive, because it  was common  ground between the parties that this was the  practice which  was being  consistently followed by the Haryana  Public Service  Commission over  the years  and what was done in this case was nothing exceptional. The only question is  whether this had any invalidating effect on the selections made by the Haryana Public Service Commission.      We do not think that the selections made by the Haryana Public Service  Commission could  be  said  to  be  vitiated merely  on  the  ground  that  as  many  as  1300  and  more candidates representing  more than  20 times  the number  of available vacancies were called for interview, though on the view taken by us that was not the right course to follow and not more  than twice or at the highest thrice, the number of candidates should  have been called for interview. Something more  than   merely  calling   an  unduly  large  number  of candidates  for   interview  must   be  shown  in  order  to invalidate the  selections made.  That is  why the  Division Bench relied on the comparative figures of marks obtained in the written  examination and  at the  viva voce  test by the petitioners, the  first 16 candidates who topped the list in the written  examination and  the first  16  candidates  who topped the  list on the basis of the combined marks obtained in the  written examination  and the  viva  voce  test,  and observed that these figures showed that there was reasonable likelihood of  arbitrariness and bias having operated in the marking at  the viva  voce test. Now it is true that some of the petitioners  did quite  well in  the written examination but faired  badly in  the viva  voce test  and in fact their performance  at   the  viva   voce  test  appeared  to  have

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deteriorated in  comparison to their performance in the year 1977-78. Equally  it is  true  that  out  of  the  first  16 candidates who  topped the  list in the written examination, 10 secured  poor rating  in viva voce test and where knocked out of  the reckoning while 2 also got low marks in the viva voce test  but just managed to scrape through to come within the range  of selection.  It is  also true  that out  of the first 16  candidates who topped the list on the basis of the combined marks  obtained in  the written examination and the viva voce test, 12 could come in the list only on account of the high  marks obtained  by them  at the  viva  voce  test, though the marks obtained by them in the written examination were not of sufficiently high order. These 693 figures relied  upon by  the Division  Bench  may  create  a suspicion in  one’s mind  that some element of arbitrariness might  have   entered  the   assessment  in  the  viva  voce examination. But  suspicion cannot  take the  place of proof and we  cannot strike down the selections made on the ground that the  evaluation of  the merits of the candidates in the viva voce examination might be arbitrary. It is necessary to point out  that the  Court cannot  sit in  judgment over the marks awarded  by interviewing bodies unless it is proved or obvious  that   the  marking   is  plainly  and  indubitably arbitrary or  affected by oblique motives. It is only if the assessment  is   patently   arbitrary   or   the   risk   of arbitrariness is  so high  that a  reasonable  person  would regard arbitrariness  as inevitable,  that the assessment of marks at  the viva  voce test  may be  regarded as suffering from the  vice of  arbitrariness. Moreover,  apart from  the only  three   candidates,  namely.   Trilok   Nath   Sharma, Shakuntala Rani and Balbir Singh one of whom belonged to the general category and was related to Shri Raghubar Dayal Gaur and the other two were candidates for the seats reserved for Scheduled Castes  and were related to Shri R.C. Marya, there was no other candidate in whom the Chairman or any member of the Haryana  Public Service  Commission was  interested,  so that there could be any motive for manipulation of the marks at the  viva voce  examination. There were of course general allegations of  casteism made  against the  Chairman and the members of  the Haryana Public Service Commission, but these allegations were not substantiated by producing any reliable material before  the Court.  The Chairman and members of the Haryana  Public  Service  Commission  in  fact  belonged  to different castes  and it  was not as if any particular caste was predominant  amongst the  Chairman and  members  of  the Haryana Public  Service Commission  so as  even to  remotely justify  an   inference  that  the  marks  might  have  been manipulated to  favour the  candidates of  that caste. We do not think that the Division Bench was right in striking down the selections made by the Haryana Public Service Commission on the ground that they were vitiated by arbitrariness or by reasonable likelihood of bias.      That takes  us to  the next  ground of  challenge which found acceptance  with the  Division Bench.  This ground  of challenge was strenuously urged on behalf of the petitioners and it  was sought  to be  supported  by  reference  to  the decision of  this Court  in Ajay Hasia v. Khalid Mujjubudin. The contention of the petitioners under this 694 ground of  challenge was  that in  comparison to  the  marks allocated to  the written examination, the proportion of the marks allocated  to the  viva voce test was excessively high and that introduced an irredeemable element of arbitrariness in the  selection process so as to offend Articles 14 and 16

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of the  Constitution. It is necessary in order to appreciate this contention  and to  adjudicate  upon  its  validity  to consider the  relative weight attached by the relevant rules to the  written examination  and viva  voce  test.  We  have already referred  to the  Punjab  Civil  Service  (Executive Branch) Rules  1930 as  applicable in  the State of Haryana. Rule  9   of  these  rules  prescribes  that  a  competitive examination shall be held in accordance with the Regulations set out  in Appendix  1 for  the  purpose  of  selection  by competition of  candidates  to  the  Haryana  Civil  Service (Executive Branch)  and  other  allied  services  and  under Regulations 1  and 5  every ex-service officer has to appear in a  written examination  in 5 compulsory subjects carrying in the aggregate 400 marks and a viva voce test carrying 200 marks and likewise, every candidate belonging to the general category has  to  appear  in  a  written  examination  in  8 subjects carrying  in the  aggregate 700  marks and  for him also there  is a  viva voce  test carrying  200  marks.  The argument of  the petitioners  was that in case of ex-service officers the marks allocated for the viva voce test were 200 as against 400 allocated for the written examination so that the marks  allocated for the viva voce test came to 33.3% of the total  number of  taken into  account for the purpose of making  selection.   So  also  in  the  case  of  candidates belonging to  the general  category, the marks allocated for the viva voce test were 200 as against 700 allocated for the written examination with the result that the marks allocated for the  viva voce test came to 22.2% of the total number of marks for  the competitive  examination. This  percentage of 33.3% in  the case  of ex-service  officers and 22.2% in the case of  other candidates  was, according  to  the  Division Bench,  unduly  high  and  rendered  the  selection  of  the candidates arbitrary.  The correctness of this view has been challenged before us on behalf of the respondents.      This Court speaking through Chinnappa Reddy, J. pointed out in Liladhar v. State of Rajasthan that the object of any process of  selection for  entry into  public service  is to secure the  best and  the most  suitable person for the job, avoiding  patronage  and  favouritism.  Selection  based  on merit, tested impartially and objectively, is the 695 essential foundation  of any  useful  and  efficient  public service. So  open competitive  examination has  come  to  be accepted  almost   universally  as  the  gateway  to  public services. But  the question  is how  should the  competitive examination be  devised? The  competitive examination may be based exclusively  on written examination or it may be based exclusively on  oral interview  or it  may be  a mixture  of both. It  is entirely for the Government to decide what kind of competitive  examination would  be appropriate in a given case. To quote the words of Chinnappa Reddy, J. "In the very nature of things it would not be within the province or even the competence  of the court and the Court would not venture into such  exclusive thickets to discover ways out, when the matters are  more appropriately  left" to  the wisdom of the experts. It  is not  for  the  Court  to  lay  down  whether interview test  should be  held at  all or  how  many  marks should be  allowed for  the interview  test. Of  course  the marks  must   be  minimal   so  as   to  avoid   charges  of arbitrariness, but  not necessarily  always. There may posts and appointments  where the  only proper method of selection may be by a viva voce test. Even in the case of admission to higher degree  courses, it  may sometimes  be  necessary  to allow a  fairly high  percentage of  marks for the viva voce test. That  is why  rigid rules cannot be laid down in these

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matters and not any courts. The experts bodies are generally the best  judges. The  Government aided  by experts  in  the field may appropriately decide to have a written examination followed by a viva voce test.      It is  now admitted  on all  hands that while a written examination   assesses   the   candidate’s   knowledge   and intellectual ability,  a viva  voce test  seeks to  assess a candidate’s overall  intellectual  and  personal  qualities. While a  written examination has certain distinct advantages over the  viva voce  test, there  are yet  no written  tests which can  evaluate  a  candidate’s  initiative,  alertness, resourcefulness, dependableness,  cooperativeness,  capacity for  clear   and  logical   presentation,  effectiveness  in discussion,  effectiveness   in  meeting  and  dealing  with others, adaptability,  judgment, ability  to make  decision, ability to  lead, intellectual  and moral integrity. Some of these qualities  can be  evaluated, perhaps with some degree of error,  by a  viva  voce  test,  much  depending  on  the constitution of the interview Board.      Glenn Stahl  has pointed  out in  his  book  on  Public Personnel Administration that the viva voce test does suffer from  certain   disadvantages  such  as  the  difficulty  of developing a valid and reliable oral test, the difficulty of securing a reviewable record of an oral test 696 and public  suspicion of  the oral test as a channel for the exertion of  political influence and, as pointed out by this Court in  Ajay Hasia’  case (supra),  also of other corrupt, nepotistic or  extraneous considerations,  but despite these acknowledged disadvantages, the viva voce test has been used increasingly in  the public personnel testing and has become an  important   instrument  whenever   tests  of   personnel attributes are considered essential. Glenn Stahl proceeds to add that  "no  satisfactory  written  tests  have  yet  been devised for  measuring  such  personnel  characteristics  as initiative, ingenuity  and ability  to  elicit  cooperation, many  of  which  are  of  prime  importance.  When  properly employed, the  oral test  today  deserves  a  place  in  the battery used by the technical examiner." There can therefore be no  doubt that  the viva voce test performs a very useful function in  assessing personnel  characteristics and traits and in fact, tests the man himself and is therefore regarded as an important tool along with the written examination. Now if both  written examination and viva voce test are accepted as essential  features of  proper selection in a given case, the question  may arise  as to  the weight  to  be  attached respectively to them. "In the case of admission to a college for  instance",  as  observed  by  Chinnappa  Reddy,  J.  in Liladhar’s case,  "where the  candidate’s 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 lief,  greater weight  has perforce to be given to  performance in  the written  examination" and  the importance to  be attached  to the  viva voce test in such a case would therefore necessarily be minimal. It was for this reason that  in Ajay  Haisa’s case  this Court took the view that the  allocation of  as high  a percentage  of marks  as 33.3% to  the viva  voce test  was  "beyond  all  reasonable proportion and  rendered the  selection  of  the  candidates arbitrary". But,  as pointed out by Chinnappa Reddy, J., "in the 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". There  may also be  services "to which recruitment is made from younger

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candidates whose  personalities are  on the  thresh hold  of development and who show sings of great promise" and in case of such services where sound selection must combine academic ability with  personality promise,  some weight  has  to  be given to  the viva  voce test.  There cannot be any hard and fast rule  regarding the  precise weight  to be given to the viva voce  test as  against the written examination. It must vary from service to service 697 according to  the requirement  of the  service, the  minimum qualification prescribed,  the  age  group  from  which  the selection is  to be  made, the  body to  which the  task  of holding the viva voce test is proposed to be entrusted and a host of  other factors.  It  is  essentially  a  matter  for determination by  experts. The  Court does  not possess  the necessary equipment  and it would not be right for the Court to pronounce  upon it,  unless to use the words of Chinnappa Reddy, J.  in Liladhar’s  case "exaggerated  weight has been given with proven or obvious oblique motives."      We may  now, in  the  background  of  this  discussion, proceed to  consider whether  the allocation  of as  high  a percentage of  marks as  33.3 per cent in case of ex-service officers and  22.2 per cent in case of other candidates, for the viva  voce test renders the selection process arbitrary. So far as ex-service officers are concerned, there can be no doubt that  the percentage  of marks  allocated for the viva voce test  in their  case is  unduly high and it does suffer from the  vice of  arbitrariness. It has been pointed out by the Division  Bench in a fairly elaborate discussion that so far as  the present selections in the category of ex-service officers are concerned, the spread of marks in the viva voce test was  inordinately high  compared to the spread of marks in the written examination. The minimum marks required to be obtained in  the written examination for eligibility for the viva voce  test are  180 and  as against  these minimum  180 marks, the highest marks obtained in the written examination in the  category of ex-service officers were 270, the spread of marks in the written examination thus being only 90 marks which works  out to  a ratio  of 22.2  per cent. But when we turn to  the marks  obtained in  the viva voce test, we find that  in  case  of  ex-service  officers  the  lowest  marks obtained were  20 while  the highest  marks secured were 171 and the  spread of  marks in  the viva voce test was thus as wide as  151 in a total of 200 marks, which worked out to an inordinately high  percentage of  76. The spread of marks in the viva  voce test  being enormously  large compared to the spread of  marks in  the written  examination, the viva voce test tended  to become a determining factor in the selection process, because  even if  a candidate  secured the  highest marks in the written examination, he could be easily knocked out of the race by awarding him the lowest marks in the viva voce test  and correspondingly, a candidate who obtained the lowest marks  in the  written examination could be raised to the top  most position  in the merit list by an inordinately high marking  in the viva voce test. It is therefore obvious that the allocation of 698 such a  high percentage  of marks as 33.3 per cent opens the door wide  for arbitrariness,  and in  order to diminish, if not eliminate  the risk  of arbitrariness,  this  percentage need to be reduced. But while considering what percentage of marks may  legitimately be  allocated for the viva voce test without incurring  the reproach  of arbitrariness it must be remembered that  ex-service  officers  would  ordinarily  be middle aged  persons of  mature personality  and it would be

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hard on  them at  that age  to go  through  a  long  written examination involving  8 subjects  and hence it would not be unfair to  require them  to go  through  a  shorter  written examination in  only 5  subjects and  submit to  a viva voce test carrying  a higher  percentage of marks than that might be  prescribed   in  case   of   younger   candidates.   The personalties of these ex-service officers being fully mature and developed, it would not be difficult to arrive at a fair assessment of  their merits  on the  basis of  searching and incisive viva  voce test  and therefore  in their  case, the viva voce  test may  be accorded  relatively greater weight. But in  any event  the marks allocate for the viva voce test cannot be as high as 33.3 per cent.      The position  is  no  different  when  we  examine  the question in  regard to the percentage of marks allocated for the viva  voce test  in case  of persons  belonging  to  the general category.  The  percentage  in  the  case  of  these candidates is  less than  that in  the  case  of  ex-service officers, but  even so  it is  quite high  at the  figure of 22.2. Here  also it  has been  pointed out  by the  Division Bench by  giving facts  and figures as to how in the case of present selections  from the  general category the spread of marks in  the viva  voce test was inordinately high compared to the  spread of marks in the written examination so that a candidate receiving  low marks  in the  written  examination could be  pulled up  to a high position in the merit list by inordinately high  marking in  the viva  voce test. The viva voce test  in the  general category, too, would consequently tend to  become a  determining  factor  in  the  process  of selection, tilting  the scales in favour of one candidate or the other  according to the marks awarded to him in the viva voce test.  This is  amply borne  out by the observations of the Kothari  Committee in the Report made by it in regard to the selections  to the  Indian  Administrative  Service  and other allied  services. The  competitive examination  in the Indian Administrative Service and other allied services also consists of  a written  examination followed  by a viva voce test. Earlier  in 1948 the percentage of marks allocated for the viva voce 699 test was  22 and  it was marginally brought down to 21.60 in 1951 and  then again  in 1964,  it was scaled down to 17.11. The Kothari Committee in its Report made in 1976 pleaded for further reduction  of the  percentage of marks allocated for the viva  voce test  and strongly  recommended that the viva voce test  should carry  only 300  out of  a total  of  3000 marks. The Kothari Committee pointed out that even where the percentage of  marks allocated  for the  viva voce  test was 17.11, nearly  1/4th of  the candidates  selected owed their success to the marks obtained by them at the viva voce test. This proportion  was regarded  by the  Kothari Committee  as "somewhat on  the high side". It is significant to note that consequent upon the Kothari Committee Report, the percentage of marks allocated for the viva voce test in the competitive examination for  the Indian Administrative Service and other allied services  was brought down still further to 12.2. The result is  that since the last few years, even for selection of candidates in the Indian Administrative Service and other allied services  where the  personality of the candidate and his  personnel  characteristics  and  traits  are  extremely relevant for  the purpose  of selection, the marks allocated for the  viva voce test constitute only 12.2 per cent of the total marks.  Now if  it was found in the case of selections to  the  Indian  Administrative  Service  and  other  allied services that  the allocation  of even  17.11 per cent marks

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for the  viva voce  test was  on the  higher side and it was responsible for  nearly 1/4th  of  the  selected  candidates securing a  place in  the select  list owing  to  the  marks obtained by  them at  the viva  voce test, the allocation of 22.2 per  cent marks  for the viva voce test would certainly be likely  to create  a wider  scope for arbitrariness. When the  Kothari   Committee  admittedly  an  Expert  Committee, constituted for  the purpose of examining recruitment policy and selection  methods for the Indian Administrative Service and other  allied services took the view that the allocation of 17.1  per cent  marks for  the viva  voce test was on the higher  side  and  required  to  be  reduced,  it  would  be legitimate to hold that in case of selections to the Haryana Civil Services (Executive Branch) and other allied services, which are  services of  similar nature  in  the  State,  the allocation of 22.2 per cent marks for the viva voce test was unreasonable. We  must therefore  regard the  allocation  of 22.2 per  cent of  the total marks for the viva voce test as infecting  the   selection  process   with   the   vice   of arbitrariness.      But the question which then arises for consideration is as to  what is  the effect  of allocation  of  such  a  high percentage of marks 700 for the  viva voce test, both in case of ex-service officers and in  case of  other candidates, on the selections made by the Haryana  Public Service Commission. Though we have taken the view that the percentage of marks allocated for the viva voce test  in both these cases is excessive, we do not think we would  be justified  in the exercise of our discretion in setting aside  the selections  made by  the  Haryana  Public Service Commission  after the lapse of almost two years. The candidates selected by the Haryana Public Service Commission have already  been appointed  to various posts and have been working on  these posts  since the  last  about  two  years. Moreover the  Punjab Civil  Service (Executive Branch) Rules 1930 under  which 33.3  per cent marks in case of ex-service officers  and   22.2  per   cent  marks  in  case  of  other candidates, have  been allocated for the viva voce test have been in  force for almost 50 years and everyone has acted on the basis  rules. If  selections made in accordance with the prescription contained  in these  rules are  now to  be  set aside, it  will upset a large number of appointments already made on  the basis  of such selections and the integrity and efficiency of  the entire  administrative machinery would be seriously jeopardised.  We do  not therefore  propose to set aside the  selections made  by the  Haryana  Public  Service Commission though  they have  been made  on the  basis of an unduly high  percentage of marks allocated for the viva voce test.      Now if  the allocation  of such  a high  percentage  of marks as  33.3 in  case of  ex-service officers  and 22.2 in case  of  other  candidates,  for  the  viva  voce  test  is excessive,  as  held  by  us,  what  should  be  the  proper percentage of  marks to  be allocated for the viva voce test in both  these cases.  So far  as candidates  in the general category are concerned we think that it would be prudent and safe to  follow the  percentage adopted  by the Union Public Service Commission  in case  of  selections  to  the  Indian Administrative  Service   and  other  allied  services.  The percentage of  marks allocated for the viva voce test by the Union Public Service Commission in case of selections to the Indian Administrative  Services and  other allied service is 12.2. and  that has  been found  to be  fair  and  just,  as striking a  proper balance  between the  written examination

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and the  viva voce  test. We  would  therefore  direct  that hereafter in  case of  selections to  be made to the Haryana Civil Services (Executive Branch) and other allied services, where the  competitive examination  consists  of  a  written examination  followed   by  a  viva  voce  test,  the  marks allocated for 701 the viva  voce test  shall not  exceed 12.2  per cent of the total marks taken into account for the purpose of selection. We would suggest that this percentage should also be adopted by the  Public Service  Commissions is other States, because it is  desirable that  there should  be  uniformity  in  the selection process  throughout the  country and  the practice followed by  the Union  Public Service  Commission should be taken as a guide for the State Public Service Commissions to adopt and  follow. The percentage of marks allocated for the viva voce  test case of ex-service officers may, for reasons we have  already discussed,  be  somewhat  higher  than  the percentage for  the  candidates  belonging  to  the  general category. We  would therefore  direct that  in case  of  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  per  cent  in  case  of  candidates belonging to the general category and 25 per cent in case of ex-service officers.      Before we  part with  this judgment  we would  like  to point out  that the  Public Service  Commission  occupies  a pivotal place  of importance  in the State and the integrity and  efficiency  of  its  administrative  apparatus  depends considerably on  the quality  of the  selections made by the Public Service  Commission. It  is absolutely essential that the  best   and  finest   talent  should  be  drawn  in  the administration and  administrative services must be composed of men  who are  honest, upright and independent and who are not swayed  by the  political winds  blowing in the country. The selection  of candidates for the administrative services must therefore  be made  strictly on merits, keeping in view various factors  which go to make up a strong, efficient and people oriented  administrator. This can be achieved only if the Chairman  and members  of the  Public Service Commission are  eminent  men  possessing  a  high  degree  of  calibre, competence and  integrity, who  would inspire  confidence in the public  mind about  the objectivity  and impartiality of the selections  to be  made by them. We would therefore like to strongly impress upon every State Government to take care to see  that its  Public Service  Commission  is  manned  by competent, honest  and independent  persons  of  outstanding ability and  high reputation  who command  the confidence of the  people  and  who  would  not  allow  themselves  to  be deflected by 702 any extraneous considerations from discharging their duty of making selections  strictly on  merits. Whilst  making these observations we  would like  to make  it clear that we do no for a  moment wish  to suggest that the Chairman and members of the Haryana Public Service Commission in the present case were lacking in calibre, competence or integrity.      We would  also like  to point  out that  in some of the States, and  the State  of  Haryana  is  one  of  them,  the practice followed  is to  invite a retired Judge of the High Court as  an expert  when selections  for recruitment to the

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Judicial Service  of the State are being made and the advice given by  such retired  High Court Judge who participates in the viva  voce test as an expert is sometimes ignored by the Chairman and  members of the Public Service Commission. This practice is  in our opinion undesirable and does not commend itself to  us. When  selections for  the Judicial Service of the State  are being  made, it  is necessary to exercise the utmost  care   to  see   that  competent  and  able  persons possessing a  high degree  of rectitude  and  integrity  are selected, because  if we  do not  have good,  competent  and honest judges,  the democratic  polity of  the State  itself will be  in serious  peril. It  is therefore  essential that when selections  to the  Judicial Service  are being made, a sitting Judge of the High Court to be nominated by the Chief Justice of the State should be invited to participate in the interview as an expert and since such sitting Judge comes as an expert  who, by  reason of  the fact that he is a sitting High Court  Judge, knows  the quality  and character  of the candidates appearing  for the interview, the advice given by him should  ordinarily be  accepted, unless there are strong and cogent  reasons for  not accepting  such advice and such strong and cogent reasons must be recorded in writing by the Chairman and  members of  the Public  Service Commission. We are giving  this direction  to the Public Service Commission in every State because we are anxious that the finest talent should be  recruited in the Judicial Service and that can be secured  only   by  having   a  real   expert  whose  advice constitutes a determinative factor in the selection process.      We  accordingly   allow  the  appeals,  set  aside  the judgment of the Punjab and Haryana High Court and reject the challenge to  the validity  of the  selections made  by  the Haryana Public  Service  Commission  to  the  Haryana  Civil Services (Executive  Branch) and  other allied services. But in  view  of  the  fact  that  an  unduly  large  number  of candidates were called for interview and the marks 703 allocated in the viva voce test were excessively high, it is possible  that   some  of  the  candidates  who  might  have otherwise come  in the  select list  were left  out  of  it, perhaps unjustifiably.  We would  therefore direct  that all the candidates who secured a minimum of 45 per cent marks in the written  examination but who could not find entry in the select  list,  should  be  given  one  more  opportunity  of appearing in  the competitive  examination which  would  now have to  be held in accordance with the principles laid down in this  Judgment and  this opportunity  should be  given to them, even  though they  may have  passed  the  maximum  age prescribed by the rules for recruitment to the Haryana Civil Services (Executive  Branch) and  other allied  services. We would direct  that in the circumstances of the case the fair order of  costs would be that each party should bear and pay his own costs throughout. M.L.A.         Appeals allowed 704