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CASE NO.: Appeal (civil)  4559 of 2006

PETITIONER: Ku. Rashmi Mishra                                                

RESPONDENT: Madhya Pradesh Public Service Comission & Ors.           

DATE OF JUDGMENT: 19/10/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T (Arising out of SLP(C) Nos.26013-26014 of 2004)

S.B. Sinha, J.

       Leave granted.

       The principal question raised before us in this appeal is the  validity/legality of the selection process involved in selecting Assistant  Registrars, Class II gazetted post.

       Appellant is holder of a Post Graduate degree.  She had also done  B.Ed. and was having 7 years’ teaching experience.  The 1st respondent- Public Service Commission issued an advertisement on or about 24.7.2003  for recruitment to the post of Assistant Registrar in the State University of  Madhya Pradesh.  The Commission was called upon by the State to fill up  17 posts, the essential qualifications wherefor are stated to be as under :

"C.     Essential Qualifications : The postgraduate degree  from the any recognized University in minimum of the  IInd Class or its equivalent degree.

Requirement :  The work experience on the post of  Teaching/Administrative post."           

It was stated that the essential qualifications stipulated in the  advertisement were the minimum.   

The State of Madhya Pradesh, in exercise of its power conferred upon  it by sub-Section (2) of Section 15-A of the Madhya Pradesh  Vishwavidyalaya Adhiniyam, 1973 made Rules known as Madhya Pradesh  State University Service Rules, 1982 (for short, ’the 1982 Rules’), Rules 5  and 8(ii) which are relevant for our purpose read as under :

"5.     Method of recruitment.- (1) Without prejudice to  the provisions of rule 7, recruitment to the Service after  the commencement of these rules, shall be by the  following methods, namely:-

a)      by direct recruitment, b)      by promotion of persons, holding a lower post which  may or may not comprise the Service, to a higher post  comprising the Service, and

c)      by deputation from the State Government or any  organization other than the Universities as the  Kuladhipati may deem fit,

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(2)     The number of persons recruited by various methods  under sub-rule (1) shall be in accordance with the  percentage shown in Schedule I.

(3)     Notwithstanding anything to the contrary contained  in sub-rules (1) and (2), if in the opinion of the  Kuladhipati, the exigencies of Service so require, he may,  in consultation with the Commission, adopt such  methods of recruitment to the service, other than those  prescribed in sub-rule (1) as he may, by an order issued  in this behalf, specify."

"8.     Conditions of eligibility of direct recruits.- In  order to be eligible for direct recruitment to the Service a  candidate must satisfy the following conditions, namely:-

(i)     \005\005

(ii)    A candidate who is a retrenched Government or  University employee shall be allowed to deduct from his  age the period of all temporary service previously  rendered by him upto a maximum limit of 7 years even if  it represents more than one spell provided that the  resultant age does not exceed the upper age limit by more  than three years."

       Rule 11 provides for mode of direct recruitment.

       Rule 12 of the Rules is as under :

"12.            List of candidates recommended by the  Commission.- (1) The Commission shall forward to the  Kuladhipati a list arranged in order of merit of the  suitable candidates who have qualified by such standards  as the Commission may determine and of the candidates  belonging to the Scheduled Castes and Scheduled Tribes  who, though not quali by that standard, are declared by  the Commission to be suitable for appointment to the  Service with due regard to the maintenance of efficiency  of administration.  The list shall be published for general  information.

(2)     Subject to the provisions of these rules, candidates  will be considered for appointment to the available  vacancies in the order in which their names appear in the  list.

(3)     The inclusion of a candidate’s name in the list shall  confer no right to appointment unless the Kuladhipati is  satisfied, after such enquiry as may be considered  necessary, that the candidate is suitable in all respects for  appointment to the Service."  

Pursuant to or in furtherance of the said advertisement, 6158  candidates filed applications.  The Commission conducted a preliminary  examination on 23.11.2003. 4767 candidates appeared therein.                     55 candidates were short-listed, having been found to be eligible for  appearing at the viva voce test.  Interviews were held between the period  9.2.2004 and 11.2.2004.  Whereas 17 persons, including Respondent Nos.3

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and 4 herein were selected, Appellant was not.   

She filed a writ petition before the Madhya Pradesh High Court,  which was registered as Writ Petition No.2665 of 2004.  All the selected  candidates were not impleaded as parties therein.  Only Respondent Nos.3  and 4, against whom allegations were made to the effect that although they  were inexperienced and were having inferior academic qualification, were  selected being influential persons were impleaded, stating :

"That, it would be pertinent to mention here that  the husband of respondent No.3, is a Deputy Collector  and is presently posted as S.D.M. Ujjain.  He is having  high political link and is related to influential personality.   Inspite of having no experience, much less any teaching  or administrative experience, she has been adorned with  the selection on the post of Assistant Registrar.  Similarly  respondent No.4 and other selected candidates, who lack  any teaching experience, having been selected, whereas  the petitioner who satisfied all the requisite  qualifications, for the aforesaid post, has not been  selected."          

The aforesaid respondents ware said to have been impleaded in a  representative capacity purportedly because Appellant was not having the  addresses of the candidates who were selected.  The learned Single Judge of  the High Court, by reason of the impugned judgment, did not find any merit  in the writ petition and dismissed the same opining that Appellant having  participated in the selection process knowing fully well the conditions of  advertisement and having not been selected in the interviews, could not  question the selection process.   

Mr. S.B. Sanyal, the learned Senior Counsel appearing on behalf of  the appellant, inter alia, submitted :

i)      1982 Rules were ultra vires as no selection could be made only  on the basis of interview ignoring the marks obtained in the written  examination and/or academic qualification and experience;   

ii)     Selection entirely on viva voce tests may be permissible in  respect of the post which requires professional experience and not for the  teachers of the Universities wherefor academic qualification as also the  experience are relevant factors.  Strong reliance, in this behalf, has been  placed on Ajay Hasia vs. Khalid Mujib Sehravardi [(1981) 1 SCC 722]  and Ashok Kumar Yadav & Ors. etc. vs. State of Haryana & Ors. etc.  [(1985) 4 SCC 417]; and   

iii)    Having regard to the academic qualification and experience  held by Appellant, she had a legitimate expectation of being appointed.   

Mr. S.K. Gambhir, the learned Senior Counsel appearing on behalf of  the Madhya Pradesh Service Commission, on the other hand, contended  that-  

i)      As the viva voce test was the only criteria fixed for selection of  Assistant Registrar in terms of the statutory rules, no illegality can be said to  have been committed;

ii)     Appellant could have challenged the vires of the Rules at the  threshold, but, having taken part in the selection process, could not be  permitted to question the same, having not been selected by the Public  Service Commission;

iii)    The selected candidates having not been impleaded as parties,  the writ petition was not maintainable.  Reliance in this behalf has been

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placed on Prabodh Verma & Ors. vs. State of Uttar Pradesh & Ors.  [(1984) 4 SCC 251].   

It is not in dispute that all the 17 selected candidates were not  impleaded as parties.  Respondent Nos.3 and 4, although, purported to have  been impleaded as parties, the same, as noticed hereinbefore, was done on a  different premise.  Allegations of favoritism against them having been made,  indisputably they were necessary parties.  In the writ petition, although, the  appellant contended that they were being impleaded in their representative  capacity; admittedly no step had been taken in terms of Order 1 Rule 8 of the  Code of Civil Procedure or the principles analogous thereto.   

The High Court did not go into the question as to whether any  favoritism or nepotism had been shown in favour of the respondent Nos.3  and 4 by the members of the Selection Committee.  Notices having been  issued and the respondents having filed their responses before the High  Court, we may presume that the contention in regard to favoritism or  nepotism allegedly shown by the Selection Committee in favour of  respondent Nos.3 and 4 had not been pressed.

In the aforementioned situation, all the seventeen selected candidates  were necessary parties in the writ petition.  The number of selected  candidates was not large.  There was no difficulty for Appellant to implead  them as parties in the said proceeding.  The result of the writ petition could  have affected the appointees.  They were, thus, necessary and/or in any event  proper parties.            

In Prabodh Verma (supra) this Court held :

"The first defect was that of non-joinder of  necessary parties.  The only respondents to the Sangh’s  petition were the State of Uttar Pradesh and its concerned  officers.  Those who were vitally concerned, namely, the  reserve pool teachers, were not made parties \026 not even  by joining some of them in a representative capacity,  considering that their number was too large for all of  them to be joined individually as respondents.  The  matter, therefore, came to be decided in their absence.  A  High Court ought not to decide a writ petition under  Article 226 of the Constitution without the persons who  would be vitally affected by its judgment being before it  as respondents in a representative capacity if their  number is too large, and, therefore, the Allahabad High  Court ought not to have proceeded to hear and dispose of  the Sangh’s writ petition without insisting upon the  reserve pool teachers being made respondents to that writ  petition, or at least some of them being made respondents  in a representative capacity, and had the petitioners  refused to do so, ought to have dismissed that petition for  non-joinder of necessary parties."

{See also All India SC & ST Employees Assn. & Anr. etc. vs. A.  Arthur Jeen & Ors. etc. [(2001) 6 SCC 380] and Indu Shekhar Singh &  Ors. vs. State of U.P. & Ors. [2006 (5) SCALE 107].}

Furthermore, the validity of 1982 Rules was not in question in the writ  petition.  What was in question was only the selection process.  In the  absence of any prayer made in the writ petition in that behalf and/or grounds  for such a declaration having not been set out, evidently the High Court  could not have gone thereinto.  We are, therefore, are not in a position to  declare the said Rules as ultra vires as was urged by Mr. Sanyal.  We,  however, cannot refrain ourselves from observing that the said Rules  apparently do not satisfy the requirements of the law as laid down by this

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Court.  Interview, indisputably, is one of the relevant factors for selection.   This Court, however, had noticed that nepotism or favoritism in making  selection cannot be ruled out and as such, categorically laid down that a low  percentage of the total marks only should be fixed for interview.           In Ajay Hasia (supra), it was held :

"The second ground of challenge questioned the  validity of viva voce examination as a permissible test for  selection of candidates for admissions to a college.  The  contention of the petitioners under this ground of  challenge was that viva voce examination does not afford  a proper criterion for assessment of the suitability of the  candidates for admission and it is a highly subjective and  impressionistic test where the result is likely to be  influenced by many uncertain and imponderable factors  such as predelictions and prejudices of the interviewers,  his attitudes and approaches, his pre-conceived notions  and idiosyncrasies and it is also capable of abuse because  it leaves scope for discrimination, manipulation and  nepotism which can remain undetected under the cover  of an interview and moreover it is not possible to assess  the capacity and calibre of a candidate in the course of an  interview lasting only for a few minutes and, therefore,  selections made oil the basis of oral interview must be  regarded as arbitrary and hence voilative of Article 14.  Now this criticism cannot be said to be wholly unfounded  and it reflects a point of view which has certainly some  validity.

The Court, upon noticing the criticism of the reputed authors in this  behalf, observed :        ".......the oral interview method continues to be very  much in vogue as a supplementary test for assessing the  suitability of candidates wherever test of personal traits is  considered essential. Its relevance as a test for  determining suitability based on personal characteristics  has been recognised in a number of decisions of this  Court which are binding upon us."

In regard to the criterion to be fixed for interview, it was stated : "......Now there can be no doubt that, having regard to the  drawbacks and deficiencies in the oral interview test and  the conditions prevailing in the country, particularly  when there is deterioration in moral values and  corruption and nepotism are very much on the increase,  allocation of a high percentage of marks for the oral  interview as compared to the marks allocated for the  written test, cannot be accepted by the Court as free from  the vice of arbitrariness. It may be pointed out that even  in Peeriakaruppan’s case (supra), where 75 marks out of  a total of 275 marks were allocated for the oral interview,  this Court observed that the marks allocated for interview  were on the highside. This Court also observed in Miss  Nishi Maghu case (1980) 4 SCC 95 : "Reserving 50  marks for interview out of a total of 150...does seem  excessive, especially when the time spent was not more  than 4 minutes on each candidate". There can be no  doubt that allocating 33 1/3 per cent of the total marks for  oral interview is plainly arbitrary and unreasonable. It is  significant to note that even for selection of candidates  for the Indian Administrative Service, the Indian Foreign  Service and the Indian Police Service, where the  personality of the candidate and his personal  characteristics and traits are extremely relevant for the

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purpose of selection, the marks allocated for oral  interview are 250 as against 1800 marks for the written  examination, constituting only 12.2 per cent of the total  marks taken into consideration for the purpose of making  the selection. We must, therefore, regard the allocation of  as high a percentage as 33 1/3 of the total marks for the  oral interview as infecting the admission procedure with  the vice of arbitrariness and selection of candidates made  on the basis of such admission procedure cannot be  sustained."

In Ashok Kumar Yadav (supra), while stating that interview is must  for professional experience, this Court opined : "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, cooperative- ness, 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 viva voce test,  much depending on the constitution of the interview  board."

However, it was observed :

".....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 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."

In State of U.P. etc. vs. Rafiquddin & Ors. etc. [1987) Supp. SCC  401], this Court was considering selection of Judicial Officers.  While doing  so, it noticed Ashok Kumar Yadav (supra) opining :  

"\005\005.The enacting clause of Rule 19 provided guidance  for the Commission in preparing the list of approved  candidates on the basis of the aggregate marks obtained  by a candidate in the written as well as in viva voce test.  Clause (2) of the proviso to Rule 19 did not no doubt  expressly lay down that the minimum marks for the viva  voce had to be prescribed but the language used therein  clearly showed that the Commission alone had the power  to prescribe minimum marks in viva voce test for judging  the suitability of a candidate for the service. ....... The  viva voce test is a well recognised method of judging the  suitability of a candidate for appointment to public  services and this method had almost universally been  followed in making selection for appointment to public  services. Where selection is made on the basis of written  as well as viva voce test, the final result is determined on  the basis of the aggregate marks. If any minimum marks  either in the written test or in viva voce test are fixed to

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determine the suitability of a candidate the same has to  be respected."

{See also Jaswinder Singh & Ors. vs. tate of Jammu & Kashmir  & Ors. [(2003) 2 SCC 132], Vijay Syal & Anr. vs. State of Punjab & Ors.  [(2003) 9 SCC 401] and K.H. Siraj vs. High Court of Kerala & Ors.  [(2006) 6 SCC 395].}  

In Sardara Singh & Ors. vs. State of Punjab & Ors. [(1991) 4 SCC  555], this Court opined that in the selection of Patwaris, the ratio in Ashok  Kumar Yadav (supra) cannot have application, holding :  

"It is then contended that the written test,  conducted by the previous Service Selection Board, was  abandoned and only oral interviews were conducted. The  selection, therefore, is illegal. Normally it may be  desirable to conduct written test and in particular of  handwriting which is vital for a Patwari whose primary  duty is to record clearly entries in revenue records  followed by oral interview. The Rules do not mandate to  have both. Options were given either to conduct written  test or viva voce or both. In this case the Committee  adopted (sic opted) for viva voce as a method to select  the candidates which cannot be said to be illegal." Unfortunately, the effect of the Ashok Kumar Yadav (supra) had not  been considered therein in great details.

We are, however, not oblivious of a decision of this Court in  Munindra Kumar & Ors. vs. Rajiv Govil & Ors. [(1991) 3 SCC 368 :  AIR 1991 SCC 1607], when this Court refused to exercise its discretionary  jurisdiction in directing creation of posts and/or granting relief to the  appellants therein on equitable grounds despite quashing the Rules in  question, but stated :

"\005..The last candidate out of the 25 selected candidates  in general category has secured 134.5 marks. Out of the  25 candidates selected in the general category, 5  candidates have secured lesser marks than Rajeev Govil  in written test, 9 candidates below Vivek Aggarwal and 2  below Gyanendra Bahadur Srivastava. A perusal of the  mark-sheet also shows that 50 candidates are such who  have not been selected instead (sic inspite) of having  secured 87.5 marks or above in written test, 79  candidates who have secured above 85 marks, and more  than 100 candidates who have secured more than 81  marks in the written test. Even if we were inclined to  give a further chance of interview and group discussion  by keeping 10 per cent and 5 per cent marks respectively  for interview and group discussion, in all fairness it  would be necessary to give chance to all such candidates  who have secured higher marks in the written test in  comparison to the respondents-writ petitioners. We have  already taken the view that we do not consider it just and  proper to set aside the selections already made. In these  circumstances even if we were inclined to give direction  to the Board to create three more posts and give chance  to all the candidates securing equal or higher marks in the  written examination than the writ petitioners, there was a  remote chance of the writ petitioners being selected. In  our view such exercise would be in futility, taking in  view the chance of success of the writ petitioners.  In the result, we allow these appeals in part and  quash the rule made by the U.P. State Electricity Board  keeping 40 marks for interview and 40 marks for group  discussion being arbitrary. We direct that in future the

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marks for interview and group discussion shall not be  kept exceeding 10 per cent and 5 per cent of the total  marks, respectively. The selection already made by the  Board for the posts of Assistant Engineers (Civil) shall  not be disturbed."                           (Emphasis supplied)

It is unfortunate that the respective State Governments had not noticed  the decisions of this Court.   A statutory rule, it is trite, must not only be, in consonance with the  legislative intent, but also must satisfy the constitutional requirements  contained in Articles 14 and 16 of the Constitution of India.  Our  Constitution professes equality.  Equality clauses contained in Articles 14,  15 and 16 of the Constitution of India are heart and soul of our Constitution.   A constitutional authority, although, would be presumed to act fairly, this  Court, while laying down the norms on which such statutory authorities  must function keeping in view the possibility of showing nepotism or  favoritism in favour of one candidate or the other, laid down the same  having regard to the doctrine of reasonableness and with a view to refrain  the constitutional and statutory authorities from acting arbitrarily.  The sole  purpose of issuing such directions by this Court had been to uphold the  doctrine of equality enshrined in our Constitution.  We have noticed  hereinbefore that this Court has not set down any fixed rules.  It had  advocated flexibility.  But the rule of flexibility was directed to be applied  having regard to the nature of post as also the duties and functions of the  incumbents thereof.   

The post of Assistant Registrar in the universities was not of such  nature which would answer the requirements of the tests laid down by this  Court at certain times.  The post requires no professional experience.  What  was required to be seen was academic qualification, experience and other  abilities of the candidate.  Whereas the ability of communication and other  skills may have to be judged through interview, experience of the candidate  as also the marks obtained by him in the written examination could not have  been ignored.  It is not that the Commission was not called upon the hold a  written examination.  The Rules enabled the Commission to do so.  Such a  written examination in fact was held.  However, the same was held only for  the purpose of short-listing the candidates and not for any other purpose.  It  was not a fair exercise of power.  The marks obtained by the candidates in  the said written examination should have been taken into consideration.   Evidently, the Commission did not do so.  For the reasons stated  hereinbefore, we would direct the State of Madhya Pradesh therefor to  consider the desirability of amending the Rules suitably so that such charges  of favoritism or nepotism by the members of the constitutional authority in  future is not called in question.   

We would, at the cost of repetition, would state that although for one  reason or the other, the High Court had not addressed itself on this question,  but, the very fact that such allegations had been made is a sufficient ground  for the State or the Commission to take appropriate steps for amending the  Rules for the said purpose.

In the instant case, however, as all the selected candidates were not  impleaded as parties in the writ petition, no relief can be granted to the  appellant.      The appeal is dismissed with the aforementioned observations and  directions.  No costs.