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PETITIONER: JASWANT SINGH NERWAL ETC.

       Vs.

RESPONDENT: STATE OF PUNJAB AND ORS. ETC.

DATE OF JUDGMENT14/02/1991

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. RAMASWAMY, K.

CITATION:  1991 SCR  (1) 411        1991 SCC  Supl.  (1) 313  JT 1991 (1)   474        1991 SCALE  (1)395

ACT:      Punjab  Civil Services (Executive Branch) Rules,  1930: Punjab   Civil  Services   Examination-Candidate-Change   of preference  intimated  and  approved  in  time-Held   valid- Candidate’s  father-Member  of Public  Service   Commission- Not   participating  in  deliberations  at candidate’s  viva voce-Selection of candidate-Valid.

HEADNOTE:      For  the  recruitment of  71  officers in  the  Punjab Civil Services (Executive Branch) and Allied Services,   the Punjab   Public   Service Commission, at the behest  of  the State  of  Punjab, held a  competitive examination.  As  per the    requirement    of   the   Punjab    Civil    Services (Executive  Branch)  Rules, 1930, the  applying   candidates specified   the  posts  in  order  of  preference  in  their respective applications. One such candidate, appellant  V.M. Bansal, who had initially indicated his first preference for the  post  of Excise & Taxation Officer,  intimated  to  the Commission,  but undisputedly before the declaration of  the result, that he wanted change of his preference so that  his first  preference  was of Punjab  Civil  Service  (Executive Branch).  This   change  was  allowed   by  the  Commission. Bansal’s  father, who was  a  member  of   the   Commission, did  not participate in the deliberations of the  Commission when  Bansal  was   interviewed.  Of   the   71   candidates declared   successful, Bansal was declared successful for  a post  in  the Punjab Civil Service,  and  appellant  jaswant Singh  Nerwal  for  the post of Tehsildar   in   the  Allied Services.   Some    of    the    unsuccessful     candidates challenged  the entire selection on various  grounds  before the   Punjab   and  Haryana High Court by means  of  a  writ petition.  On the other  hand,  Nerwal, through  a  separate writ petition, challenged the change  of  preference allowed by  the Commission to Bansal which led to  Bansal   becoming a  Punjab Civil Service Officer and Nerwal a Tehsildar,  and claimed   that  he be declared successful to a post  in  the Punjab Civil Service in preference to Bansal. The High Court by  a  common  judgment  rejected  the claim of  Nerwal  and dismissed  his writ petition, but allowed the writ  petition preferred  by the unsuccessful candidates in part   inasmuch as the selection of Bansal as a Punjab Civil Service Officer

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and  his consequential appointment was quashed.   The   High Court   however   did   not disturb  the  selection  of  the remaining  70  successful  candidates  but                                                        412 required Bansal to compete again with the other unsuccessful candidates  as per its direction extracted in the  judgment. The  High Court in issuing the aforesaid  direction  applied the  decision of this Court in A. K. Kraipak & Ors. etc.  V. Union  of  India  & Ors., [1970] 1 SCC  457,  to  neutralise Bansal’s  father being a member of the Commission. And  even though   Bansal’s  father  had  not  participated   in   the deliberations   of   the   Commission,   when   Bansal   was interviewed,  his brooding presence was held  negatively  to have influenced the selection and the possible ouster of a possibly  successful candidate. Hence these two  appeals  by special  leave,  one  by Bansal and  the  other  by  Nerwal, against the judgment of the High Court.      Allowing  the appeal of Bansal and dismissing  the  one filed by Nerwal, the Court,      HELD:   (1)   Besides  Bansal’s  father,   there   were four  other members of the  Public  Service  Commission  and who  had  functioned as a Commission. There was a long  list of  as   many   540  candidates to be  interviewed  and  the interviews  went   on  from   24.9.1973   uptil  30.10.1973. [417G]      (2) Bansal’s father did what was expected  of  him,  in having declined to participate in the deliberations of   the Commission  when Bansal went for the viva voce test. [418C]      (3)  No  material has been shown     to  entertain  the doubt   that  Bansal’s father being a member of  the  Public Service  Commission, per se had the effect of other  members keeping track of comparatives  in order to single out Bansal as a successful candidate. There is not a word of mala  fide suggested  against the other members of the  Public  Service Commission,   of  having  shared  the  supposed  animus   of Bansal’s   father. There is therefore no reason  to  sustain the  judgment of the High Court on this aspect of the  case. [418A-B]      A.K.  Kraipak  & Ors. etc. v. Union of  India  &  Ors., [19701 1 SCC 457, distinguished; Javid Rasool Bhat & Ors. v. State of Jammu & Kashmir & Ors., [1984] 2 SCC 631, affirmed; B.N. Nagarajan & Ors. v.  State of Mysore & Ors., [ 1966]  2 SCR 682, referred to.      Ashok Kumar Yadav & Ors. etc. v. State of Haryana & Ors. etc., [1985] Supp. SCR 657, relied upon.      (4)  The  manner  in  which  the  viva  voce  test   is conducted, no single                                                        413 member  can possibly usurp to himself the total  functioning of  the Commission and jealous as human nature is, no  other member  can  be  expected to have abdicated  his  powers  to another,  at  that  level,  and  to  oblige  another.  These circumstances do not give rise to the likelihood of Bansal’s father  espousing  the cause of his son to  the  other  four members of the Commission and monitor the performance of 540 candidates  to  be  interviewed,  the  results  of   written examination of which, he was not alleged to be aware  before hand.  In these circumstances, it is to uphold the  view  of the   High   Court  requiring  Bansal  to   be   interviewed again  so as to rub against the unsuccessful candidates  and to suffer the consequence. [418C-H]      In  the instant case, the system of division  of  marks out  of the allocated marks for the viva voce  test  amongst the  actual number of members present and  participating  in the  interview, was not however commended by the Court,  nor

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did  the  Court approve the provision of 200 marks  for  the viva voce test because of the percentage now authoritatively fixed in Ashok Kumar Yadav’s case. [418F]      (5) Bansal has stayed put and working as an Officer  in the Punjab Civil Service and his displacement at the present stage would otherwise be inequitous serving nobody’s purpose due  to  the time lag. The  unsuccessful  candidates  cannot possibly   now,  at  this  stage,  due  to  age  and   other supervening factors be fit for the  viva voce test, so as to elbow  out  Bansal. The obedience of the directions  of  the High  Court  at  this late stage  would  overly  be  counter productive and thus not worth sustaining. [419A-B]      (6)   Once  it  is  established  that  the  change   of preference  could be made and it was intimated and  approved timely, the conclusion is inescapable  that  Bansal’s  first preference  to  a post in the Punjab  Civil  Service  ranked superior  to Nerwal’s preference, because of their   interse ranking  in  the  examination results. Thus  the  appeal  of Nerwal has no substance and deserves rejection. [419H-420A]

JUDGMENT:      CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 334  of 1978.      From the Judgment and  Order  dated  14.2.1977  of  the Punjab  and  Haryana High Court in Civil Writ  Petition  No. 1860 of 1975.                             WITH      Civil Appeal No. 833 of 1977.                                                        414      From  the  Judgment and Order dated  14-2.1977  of  the Punjab  and  Haryana High Court in Civil Writ  Petition  No. 1172 of 1974.      Anil  Dev Singh, P.P. Rao, O.P. Sharma,  Janinder  Lal, N.S. Das Bahl, R.C. Gubrela, R.S. Suri, R.S. Sodhi (NP)  and M.S. Dhillon (NP) for the appearing parties.      The Judgment of the Court was delivered by      PUNCHHI,  J.  These two allied appeals arising  from  a common  judgment  of the Punjab and Haryana  High  Court  at Chandigarh,  in Civil Writ Petitions Nos. 1172 of  1974  and 1860  of 1975, on grant of special leave, can  appropriately be disposed of by a common judgment.      In  order  to recruit 71 officers in the  Punjab  Civil Services (Executive Branch) and Allied services, the  Punjab Public  Service  Commission, at the behest of the  State  of Punjab, held a competitive examination in December, 1972. As advertised  12 vacancies were for the Punjab Civil  Services and   the  remaining  for  Allied  Services.  The   applying candidates  as  per  the requirement  of  the  Punjab  Civil Service (Executive Branch) Rules, 1930 (for short the Rules) specified  the  posts  in  order  of  preference  in   their respective  applications.  The  result  of  those  who  were declared qualified was published in the daily Tribune  dated September  21,  1973.  Out of  the  71  candidates  declared successful  Shri V.M. Bansal, the appellant in Civil  Appeal No.  833 of 1977 was declared successful for a post  in  the Punjab  Civil  Service and Shri Jaswant  Singh  Nerwal,  the appellant  in Civil Appeal No. 334 of 1978 for the  post  of Tehsildar  in the Allied services. Some of the  unsuccessful candidates  challenged  this selection in  its  entirety  on various  grounds  before the High Court through  Civil  Writ Petition  No. 1722 of 1974. On the other hand  challenge  in Civil  Writ  Petition No. 1860 of 1975 was  made  by  Nerwal against  Bansal  for the latter having been allowed  in  the

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meantime  substituted preference for the posts to  the  ones given  in the first instance in his application,  and  which led  to  his becoming a Punjab Civil  Services  Officer  and Nerwal to be a Tehsildar, in the Allied services and had the substitution  not been allowed the position would have  been that  Nerwal  would have been in the P.C.S.  and  Bansal  an Excise  &  Taxation Officer. The challenge thus was  to  the Commission  having allowed substitution of  the  preference. The  High  Court negatived the challenge of Nerwal  and  his claim  to  be declared successful to a post  in  the  Punjab Civil Service                                                        415 in  preference  to  Bansal and  thus  dismissed  Civil  Writ Petition No. 1860 of 1975. Simultaneously Writ Petition  No. 1172  of 1974 preferred by the unsuccessful  candidates  was allowed in part  inasmuch  as  the selection of Bansal as  a Punjab   Civil   Service  Officer  and   his   consequential appointment  was quashed. The High Court, however, did   not disturb  the  selection  of  the  remaining  70   successful candidates  but required Bansal to compete again by  issuing the following direction:           "However, he is entitled to compete with the other           unsuccessful candidates for securing place in  the           merit  and  we, therefore, direct that  Shri  V.M.           Bansal  (respondent  no. 8) along with  the  other           unsuccessful  candidates be again  interviewed  by           the members of  the  Commission  except  Shri J.R.           Bansal  (respondent  no.  4)  and  whosoever    is           selected  on  merits shall have  to  be  appointed           against  the  post  for which he  is  selected  in           accordance  with  the  Rules.  We  may,   however,           observe that if Shri J.R. Bansal (respondent   no.           8)  is  again  selected  on  merits,  he  will  be           entitled  to his original seniority and all  other           benefits  of  the  Service  which  he  would  have           enjoyed had his selection not been quashed. If  in           any  case,  no candidate is selected  against  the           post  of  P.C.S.  Cadre  in  accordance  with  the           Rules,  any  of  the other selected candidates may           then  make  representation  to the Government  for           being   appointed  to  the  post  of   P.C.S.   in           accordance with the Rules."      Bansal  is  here  before  us  to  have  the   aforesaid direction quashed and Nerwal to have the place of Bansal  as a Punjab  Civil  Service Officer.      We heard learned counsel for the respective parties  on every aspect of the case at great length. The High Court was goaded  to  issue the above direction  regulating  selection between  Bansal and other unsuccessful candidates,  as  also the  consequence thereof, on applying  the decision of  this Court in A.K. Kraipak & Ors. etc. v. Union of India &  Ors., [1970]  1 SCC 457 to neutralise Bansal’s father Shri  J.  R. Bansal being a member of the Public service Commission.  And even though he had not participated in the deliberations  of the  Commission,  when  Bansal  had  been  interviewed,  his brooding presence was held negatively to have influenced the selection  and the possible ouster of a possibly  successful candidate. Kraipak’s case was one where one of the  persons, who sat as a member of the selection board, was himself, one of   the  persons  to  be  considered  for   selection.   He participated in the                                                        416 deliberations of the selection board when the claims of  his rivals  were  considered. He participated in  the  decisions relating to the preference in seniority. He participated  at

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every  stage  in the deliberations of  the  selection  board where  there was conflict between his interest and duty.  In such  set  of facts this Court unhesitatingly  came  to  the conclusion  that there was a reasonable likelihood  of  bias and  therefore  the principles of natural  justice  had  got violated.  But  this Court in Javid Rasool Bhat  &  Ors.  v. State  of Jammu & Kashmir & Ors., [1984] 2 SCC 631  did  not vitiate  the  selection  of a candidate to  admission  in  a medical  college on the ground of presence in the  selection board of the father of one of the candidates. In this  case, the  Principal of Medical College, Srinagar  whose  daughter was  a  candidate  for  admission  to  the  Medical  College informed  the Selection Committee at the very  outset  about this  fact and told them that he would not have anything  to do  with  a written test and would not be present  when  his daughter  would  be interviewed. The other  members  of  the Selection  Committee agreed to the proposal.  The  procedure adopted by the Selection Committee and the members concerned was  in  accord with the generally accepted and  well  known procedure  adopted by the Public Service  Commissions  every where  in the country, as it was not unusual for  candidates related  to members of the Service Commission and  selection Committees  to  seek  employment. In such  a  situation  the practice  generally in vogue is for the member concerned  to excuse himself when the particular candidate is  interviewed and such a selection is beyond challenge, unless, of course, mala  fide.  See this Court’s decision in S.N.  Nagarajan  & Ors. v. State of Mysore & Ors., [1966] 3 SCR 682, also.      Then  we have the momentous decision of this  Court  in Ashok  Kumar Yadav and Ors. etc. etc. v. State of Haryana  & Ors.  etc.  etc.,  [1985]  (Supp.)  SCR  657  which  without whittling  down the salutary principle evolved in  Kraipak’s case  (supra) has put the Public Service Commissions,  being creatures  of  the Constitution, at a  higher  pedestal.  At pages 686-87, it was ruled as follows:           "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 number of members  and           is  a  Constitutional Authority. We do  not  think           that the princi-                                                        417           ple  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  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

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         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   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."      It  was  the admitted case before the High  Court  that Bansal’s father did participate in the deliberations of  the Commission  when  the  viva voce test  of  other  candidates appearing  before the Commission had been taken and  he  had accordingly  awarded  marks  to  the  candidates   otherwise competing with his own son. The High Court has still deduced that inspite of the afore-suggested bias the candidates  who got  selected against the posts (except his son)  got  their due  unbiased  and  therefore  their  selection  cannot   be questioned.  Taking this deduction to be correct,  the  High Court  before  issuing the direction  under  challenge,  had further  to  find  that  there was  bias  in  excluding  the unsuccessful candidates. We do not find this to have engaged the  attention  of  the High Court. It  is  noticeable  that besides Bansal’s father there were four other members of the Public  Service  Commission  and who  had  functioned  as  a Commission.  As is evident there was a long list of as  many 540 candidates to be interviewed and the interviews went  on from  24-9-1973 uptill 30-10-1973. In the nature of  things, there  was no material before the High Court, and  none  has been  pointed to us, from which it could be  concluded  that the members                                                        418 of  the commission could keep track of the  comparatives  of each  of  those  540  candidates  so  as  to  manipulate   a favourable  result  to Bansal. We have not  been  shown  any material to entertain the doubt that Bansal’s father being a member  of  the Public Service Commission,  per-se  had  the effect  of  other members keeping track of  comparatives  in order to single out Bansal’s as a successful candidate.  And lastly  there is not a word of mala fide  suggested  against the  other  members  of the Public  Service  Commission,  of having shared the supposed animus of Bansal’s father.  Thus, in the facts and circumstances of this case, we do not  find any reason to sustain the judgment of the High Court on this aspect of the case. Bansal’s father did what was expected of him, in having declined to participate in the  deliberations of the commission when Bansal went for the viva voce test.      Our view in this regard is further strengthened by  the manner  in which the viva voce test is conducted  and  which the High Court even has not disapproved. It appears that out of  a total of 825 marks, 625 marks have been  allotted  for written tests and the remaining 200  marks   for  viva  voce test. These viva voce marks are distributed in various heads as enumerated by the High Court. What is significant is that each  member  individually  gets  25  marks  but  on  actual working, if one of them is not attending, the share of marks are divided in the present members. Further these marks  are strictly  not divided as 25 marks for each member  but  each member  allots marks to each candidate out of 125 marks  and these when added are divided by 5 or by the actual number of members  present and participating in  the   interview.   We may not be taken to be commending such a system of  division of  marks out of the allocated marks for the viva voce  test but it seems this is the practice in which they are actually

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worked  out. Similarly the provision of 200 marks  for  viva voce test cannot meet our approval because of the percentage now  authoritatively  fixed  in  Ashok  Kumar  Yadav’s  case (supra).  On  these  particulars and for  these  reasons  no single  member  can  possibly usurp  to  himself  the  total functioning  of the commission and jealous as  human  nature is,  no other member can be expected to have  abdicated  his powers  to  another, at that level, and to  oblige  another. These  circumstances do not give rise to the  likelihood  of Bansal’s father espousing the cause of his son to the  other four  members of the commission and monitor the  performance of 540 candidates to be interviewed, the results of  written examination  of  which,  he  was not  alleged  to  be  aware beforehand. In these circumstances, we find it difficult  to uphold  the  view of the High Court requiring Bansal  to  be interviewed  again  so as to rub  against  the  unsuccessful candidates and suffer the consequence.                                                        419      On  the grant of special leave to Bansal, operation  of the  judgment and order of the High Court appealed  against, was  on 27th July, 1977, stayed. Bansal has stayed  put  and working  as an Officer in the Punjab Civil Service  and  his displacement   at  the  present  stage  would  otherwise   be inequitous serving nobody’s purpose due to the time lag. The unsuccessful candidates cannot possibly now, at this  stage, due  to  age and other supervening factors, be fit  for  the viva voce test, so as to elbow out Bansal. The obedience  of the  directions of the High Court at this late  stage  would overly be counter productive and thus not worth sustaining.      This brings us to the claim of Nerwal for  displacement of  Bansal  from  the post in the Punjab  Civil  Service  in substitution  to that held by him as a Tehsildar. The  facts as  found  by  the  High  Court  are  that  initially   Shri V.M.Bansal’s  first preference was for the post of Excise  & Taxation Officer, but on December 4, 1973, he had  intimated to the Commission that he required change of his  preference so  that  his first preference was of Punjab  Civil  Service (Executive  Branch).  The  intimation was  received  in  the office of the commission on December 4, 1974 itself and  the Chairman  of  the commission on the same  date  allowed  the change.  That  such  change was   permissible   before   the declaration of the result is beyond dispute. What was  urged before  the High Court was that since  Bansal’s  application did not form part of all like applications sent in a  bundle by the commission to the state Government on 11th  December, 1973  and had rather been sent separately later on  December 20,  1973,  that  by  itself  raised  a  doubt  as  to   the authenticity   thereof.   The  High  Court   negatived   the contention.  It  held that this circumstance alone  did  not conclusively  prove  that  the  change  of  preference   was intimated  to  the commission after the declaration  of  the result on December 7, 1973 as alleged. Though the High Court went on to observe that there was no statutory rule that  no change  in  preference  could be made after  the  result  is communicated  by the commission to the State Government,  we are  not  obliged to go into that question. In face  of  the finding  of  the  High Court that  circumstantially  it  was established  on  the  record that the  preference  had  been changed by Bansal on 4-12-73, before the declaration of  the result,  it is difficult to take a contrary view.  The  High Court  had  even seen the original record to  come  to  that view.  Such like inferences drawn are in the realm of  facts and  we  have not been persuaded to take a  different  view. Once this is established that the change of preference could be  made  and  it was intimated and  appproved  timely,  the

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conclusion is inescapable that Bansal’s first preference  to a post in the Punjab Civil                                                        420 service  ranked superior to Nerwal’s preference, because  of their  interse ranking in the examination results.  Thus,the appeal  of Jaswant Singh Nerwal has no  substance  deserving rejection.      Resultantly for the views afore-expressed, Civil Appeal No. 833 of 1977 preferred by Shri V.M. Bansal is allowed and the  Civil  Writ Petition No. 1172 of 1974 before  the  High Court would stand dismissed and Civil Appeal No. 334 of 1978 of Shri Jaswant Singh Nerwal would stand dismissed affirming the  dismissal of his Writ Petition No. 1860 of 1975  before the  High Court, but without any order as to costs  in  both appeals. D.R.L.                             C.A. No.334/78 dismissed                                    C.A. No.833/77 allowed.                                                        421