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PETITIONER: PRAVEEN SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB & ORS.

DATE OF JUDGMENT:       10/11/2000

BENCH: G.B. Pattanaik, & Umesh C Banerjee.

JUDGMENT:

BANERJEE,J.

Arbitrariness  being  opposed to reasonableness is an  ante- thesis  to  law.   There  cannot,   however,  be  any  exact definition  of  arbitrariness  neither   can  there  be  any straight  jacket formula evolved therefor, since the same is dependent  on  the varying facts and circumstances  of  each case.

The  basic  facts  pertaining  to  the  appeal  against  the judgment  of the High Court depict that the Writ Petition of the  appellant was dismissed by the High Court on the ground that  there  is  no  infraction of law  neither  the  Public Service  Commission in the State of Punjab has deviated from the  criteria laid down for selection of candidates for  the post   of   Block  Development    and   Panchayat   Officer. Incidentally  the grievance of the Writ Petitioner-appellant pertains to violations of the equality clause under Articles 14 and 16 of the Constitution read with provisions of Punjab Development  and  Panchayat Class-II (Service) Rules,  1974. On  the  factual  score it appears that  the  Punjab  Public Service Commission in June, 1993 issued an advertisement for 26 vacancies of Block Development and Panchayat Officers but before  the  process  of selection could be  finalised,  the Government  of Punjab filled up the vacancies through ad hoc appointments  by  reason  wherefor, the  Service  Commission considered  it  fit  not to proceed with the  selection  any further.  The records depict that these ad hoc appointments, however  by the order of the High Court in a Petition  under Article  226  stands  quashed and the appeal  therefrom  was dismissed  by  this  Court.    This  Court,  however,  while rejecting  the  appeal  was  pleased to  direct  the  Public Service  Commission  (Punjab)  to complete  the  process  of selection  by  9th  July, 1995 and in terms  therewith,  the Service Commission issued a corrigendum to the advertisement but the vacancies were enhanced from 28 to 44 for reasons of exigencies of the situation.  It is against this corrigendum to  the advertisement about 4,500 people appeared in written test  and  subsequently roll numbers of 130 candidates  only were  published,  being eligible to appear in the viva  voce test.   On 9th July, 1995 the final result was announced and the  names  and  roll numbers of candidates who  were  found suitable  for appointments were published in order of merit. The  petitioners name, however, did not figure in the merit

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list,  which  stands challenged in the Writ Petition  before the  High  Court but the same however stands negated by  the High Court and hence the appeal before this Court.  The bone of contention raised in the appeal is the non- consideration of  the  marks  secured  by the candidates  in  the  written examination  while  determining  the overall  merit  of  the candidates  and the real merit has been ignored at the  time of  preparation of select list by the Service Commission and in  this  context,  strong  reliance   was  placed  on   the information  sheet as circulated by the Service  Commission, relevant  extracts of which are as below:  EXAM.1/93 PUNJAB PUBLIC  SERVICE  COMMISSION, PATIALA Information  Sheet  and Instructions  to Candidates BLOCK DEVELOPMENT AND  PANCHAYAT OFFICERS  EXAMINATION, 1993 IM PO RT AN T NO TE :- xx xx  xx xx xx xx xx xx CLOSING DATE

Vacancies and Reservations:                 . Qualifications:                 . Scheme of Examination:

3.   There will be four papers for written test

(a) General Knowledge including everyday science;

(b) General English/Essay,

(c)  Community  Development Panchayat Raj  and  Agricultural Development

(d)  Punjabi  Language  test   of  matriculation   Standard, followed  by  viva voce test.  The qualifying  standard  and syllabus etc.  is given in the rules attached.

       xxxx            xxxx                   xxxx

12(1).   The  examination  will  consist  of  the  following subjects and marks indicated against each:

S.No.  Subject Standard ofMaximum The papersmarks@@                           IIIIIII           IIIII

1.  English/English  BA/BSc.  Of the   100     Punjab University @@     IIIIIIIIIIIIIIIIII

2.   Punjabi (in Matriculation of 50 Gurmukhi Script) Punjab@@                                  IIIIJJJJJJJJJJJJJJJJ      school Education Board@@             IIIIIIIIIIIIIII

3.   General Knowledge       BA/BSc. Of the          100      Punjab University

4.  Community As per detailed 100 Development Syllabus in@@                                   JJJJJJJJJJJ     para 6     Raj and below.  Agricultural@@     JJJJJJJJJJJJJJ

5.  Viva Voce  50

       xx                      xxx                             xxxx

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2.   No  candidate shall be eligible to appear in  the  viva voce  test unless he obtains 33 per cent marks in each paper and 45 per cent marks in aggregate.

       xx              xxx             xxxx

Paragraph 12(1) of the document thus expressly provides that the  examination  shall consist of four  different  subjects with  100 marks each for three subjects and fifty marks (50) stand  earmarked for the 4th vernacular (Punjabi in Gurmukhi script)  totaling  350 marks and further 50 marks  for  viva voce  test.   The  essentiality of viva  voce  test  however stands  established by reason of express narration under the scheme  of examination viz.  followed by viva voce  test. In  the event of there being a written test for elimination, the  scheme of the examination would not have been  detailed in  the manner as it has been so stated.  Paragraph 3 of the instructions  refers  to  the  rules  for  laying  down  the qualifications  and  the  syllabus   for  the   examination. Admittedly,  these rules have been framed by the Governor of Punjab in exercise of his power under the proviso to Article 309.  Rule 5 of the Rules referred to the qualification that a  person can be appointed to the service who possesses  the educational  and other qualifications specified in  Appendix B.   In  Appendix  B,  the posts of  Block  Development  and Panchayat   Officers   appear   at   item  No.20   and   the qualifications   mentioned  therein  are   as  below:    (i) Graduate  of  a  recognised   University;   Preference   to Graduate  in Agriculture;  (ii) Knowledge of Punjab language upto Matriculation or equivalent standard;  (iii) Candidates will  be required to qualify the following written tests  at the time of recruitment;

(i)      General Knowledge                    100 marks (ii)     General English/Essay of          BA Standard                          100 marks

(iii)    Community Development                100 marks          Panchayati Raj and Agricultural@@          JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ          Development

(iv)     Punjabi language test of              50 marks          matriculation standard

(v)      Viva Voce                            100 marks

The  qualifying standard in the test will be 33% pass  marks in each paper and 45 per cent in the aggregate.@@    JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ

It  is  on  the  basis  of   the  rules  together  with  the information  sheet  as noticed herein before, that the  High Court  came to the conclusion that there is no arbitrariness in  the matter of selection of candidates.  The said finding stands  challenged before us principally on the ground  that there  is existing a dual requirement viz., written test  as also  the  viva-voce test and the marks obtained therein  in both  counts  ought  to have formed part of the  process  of determining  the merit and the Public Service Commission had no  authority or jurisdiction to effect the selection solely

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on  the  basis of the performance of the candidates  at  the viva  voce  examination.  The respondents however  contended that  since  it  was not possible to interview  about  4,500 candidates,  the  Public  Service Commission resorted  to  a written   elimination  test  in   order  to  facilitate  the interview  process or the viva voce test.  It was  contended that as a matter of fact 130 candidates have been called for the  viva voce test out of 4,500 approximately as against 44 vacant  posts:  A short digration from the facts however may not  be  totally unjustified at this juncture by  reason  of enormity  of the issue of available employment  opportunity. 4,500  persons  applied for 40 vacancies  a  rather  sordid state  of affairs, - employment opportunities are so  meagre as  compared  to the need and the situation has reacted  its optimum  without any indication even of a descending  trend. Needless  to record that this is not in Punjab only but this is reflected every State in the country  in some States the ratio  being still be higher  we are however not expressing any  opinion  but recording factum only so as to  focus  the the problem. respondent of Turning on to the contentions as raised by the respondent  herein that the written test on the wake of  the documentary  evidence available in the records cannot but be termed  to  be  a  mere qualifying test  and  since  Service Commission  has  proceeded to select the candidates  on  the basis  of the performance of the candidates at the viva voce examination the actions cannot be faulted in any way neither can  the  same  be ascribed to be arbitrary  or  capricious. Relying upon the aforesaid, however, the High Court observed that even though the rule is not properly articulated but on a  rational  interpretation,  there is no  escape  from  the conclusion  that passing of the written test with 33%  marks in each paper and 45% marks in aggregate does not ipso facto entitle  a  candidate to be called for viva  voce/interview. The  High  Court  however  proceeded on  the  right  of  the employer  for short-listing and screening since the same has been recognised by the law courts keeping in view the ground reality,  as it is otherwise a well-neigh impossibility  for the  selecting agency to interview all the candidates.   The High  Court  also  took  into consideration  the  number  of candidates  and the time that shall be otherwise consumed in the  event of interview of a larger number of people and  as such  the High Court came to the conclusion that the  Punjab Public  Service  Commission  was  justified  in  adopting  a rational   yardstick  for  short-listing   the   number   of candidates  for  viva  voce  test and  no  arbitrariness  or illegality  can  be  attributed therein and  the  factum  of judging  the  merits of the candidates on the basis of  viva voce  test  being  prevalent in the  Punjab  Public  Service Commission  since  the  year 1978 has also been  taken  into consideration  by the High Court.  While it is true that the administrative  or quasi-judicial authority clothed with the power  of  selection  and  appointment   ought  to  be  left unfettered  in adaptation of procedural aspect but that does not  however  mean  and imply that the same  would  be  made available  to  an  employer at the cost of fair  play,  good conscience  and  equity.   This  Court in the case  of  J  P Kulshreshtha  & Ors.  v.  Chancellor, Allahabad University & Ors.   [AIR  1980  SC 2141] did recognise  the  undetectable manipulation  of  results being achieved by  remote  control tacits and masked as viva voce test resulting the sabotaging of  the purity of proceedings.  This Court held  interviews as  such are not bad but polluting it to attain illegitimate ends  is bad.  What does Kulshreshthas case(supra) depict? Does  it  say  that  interview  should  be  only  method  of

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assessment  of  the  merits of the candidates?   The  answer obviously  cannot  be  in  the  affirmative.   The  vice  of manipulation,  we  are afraid cannot be ruled  out.   Though interview  undoubtedly a significant factor in the matter of appointments.   It plays a strategic role but it also allows creeping   in  of  a   lacuna  rendering  the   appointments illegitimate.  Obviously it is an important factor but ought not  to  be the sole guiding factor since  reliance  thereon only  may  lead  to  a  sabotage   of  the  purity  of  the proceedings.  A long catena of decisions of this Court have been noted by the High Court in the judgment but we need not dilate  thereon neither we even wish to sound a contra note. In  Ashok  Kumars  case  [Ashok Kumar Yadav  v.   State  of Haryana  :1985  (3)  SLR  200]  this  Court  however  in  no uncertain  terms observed:  There can therefore be no  doubt that  the viva voce test performs a very useful function  in assessing  the  personal characteristics and traits  and  in fact  tests the man himself and is therefore regarded as  an important  tool along with the written examination (emphasis supplied).   The situation envisaged by Chinnappa Reddy,  J. in  Lila Dhars case [Lila Dhar vs.  State of Rajasthan :AIR 1981 SC 1777] on which strong reliance was placed is totally different from the contextual facts and the reliance thereon is  also totally misplaced.  Chinnappa Reddy, J.   discussed about  the  case  of  services   to  which  recruitment  has necessarily been made from persons of mature personality and it  is in that perspective it was held that interview  test may  be the only way subject to basic and essential academic and  professional requirements being satisfied The facts in the  present context deal with Block Development Officers at the  Panchayat  level.   Neither  the  job  requires  mature personality  nor  the recruitment should be on the basis  of interview  only, having regard to the nature and requirement of the concerned jobs.  In any event, the Service Commission itself has recognised a written test as also viva voce test. The  issue  therefore  pertains as to whether  on  a  proper interpretation of the rules read with the instructions note, the  written  examination  can  be   deemed  to  be  a  mere qualifying examination and the appointment can only be given through viva voce test - a plain reading of the same however would  negate  the question as posed.  A close look  at  the qualification  as  prescribed  and  the  information  sheet, however,   in   our  view   would  depict  otherwise.    The qualifications  prescribes  that  the   candidates  will  be required  to  qualify for the following written test at  the time  of  recruitment and the qualification standard in  the test  has  been fixed tobe at 33% pass marks in  each  paper with 45% however in the aggregate (emphasised) and paragraph 4  of the Information sheet, as above, in no uncertain  term records that no candidate shall be eligible to appear in the viva voce test unless he obtains 33% marks in each paper and 45% marks in the aggregate.  Reading the two requirements as above,  in  our  view question of having  the  written  test written  off in the matter of selection does not and  cannot arise.   Had  it been the intent of the Service  Commission, then and in that event question of there being a totality of marks would not have been included therein and together with specified  marks  for viva voce tests, would not  have  been there neither there would have any requirement of qualifying pass  marks  nor  there would have any  aggregate  marks  as noticed above.  Further, in the event, the interview was the sole  criteria  and  the  written   test  being  treated  as qualifying test, the Public Service Commission ought to have clearly   stated  that  upon   completion  of  the   written elimination  test,  selection would be made on the basis  of

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the  viva voce test only as is available in the decision  of Ashok  & Ors.  v.  State of Karnataka (1992 (1) SCC 28).  Be it  noted that there is always a room for suspicion for  the common appointments if the oral interview is taken up as the only  criteria.  Of course, there are posts and posts, where interviews  can  be a safe method of appointment but to  the post  of a Block Development Officer or a Panchayat  Officer wherein  about  4500 people applied for 40 posts,  interview cannot  be  said  to be a satisfactory method  of  selection though  however  it may be a part thereof  In  the  factual score  we have the advantage of having the Rules prescribing the  mode and method of appointments and specific marks  are earmarked  for  written  examinations  of  various  subjects together  with  totality of marks for viva voce test.  As  a matter  of  fact  out of 450 marks only 50 marks  have  been allotted  for  interview by the Service Commission itself  - why  these  400 marks allotted for a written examination  in four  different subjects, if interview was to be the guiding factor:   there  has  been however, no answer  to  the  same excepting  that  the  Court ought not to  interfere  in  the matter  of selection process in the absence of mala fides true  it is that in the event the selection is tainted  with mala  fides, it would be a plain exercise of judicial  power to  set right the wrong  but is it also realistic to assume that  when the Commission in clear and categorical  language recorded  that  450 marks would be the total marks  for  the examination and out of which only 50 marks are earmarked for viva  voce test, the Commission desired that these 50  marks would  be relevant and crucial and the other 400 marks would be  rendered  totally, superfluous and of no effect at  all. The  language used is rather plain and is not capable of the interpretation  as  is being presented before us during  the course  of  hearing and as has been held by the High  Court. Reliance on 50 marks only and thereby avoiding the other 400 marks  cannot in our view having due regard to the  language used,   be   said  to  be   reasonable  or  devoid  of   any arbitrariness.  The action of the respondent Commission thus is  wholly  unreasonable, unfair and not in accordance  with the  declared principles.  Appointment procedure is  evident from  the documentary evidence disclosed in the  proceedings and  the Commission ought to have taken note of the  written examination  results as well.  As a matter of fact the  High Court  while  recording  its  acceptance to  the  method  of selection  on  the  basis of the viva voce  test  only,  was pleased  to  observe  as below:  However,  we  consider  it absolutely  imperative to observe that the Government should get the rules examined and make proper amendment so that its intention  of making distinction between qualifying test and viva  voce test does not remain obscure.  We also direct the PPSC  to  take  extra precautions while issuing  any  future advertisement  so that no inconsistency remains between  the rules and the contents of the advertisement.

The  High Court admittedly therefore found inconsistency and obscurity in the entire process and as a matter of fact, the High  Court has suggested incorporation of proper amendments in the rules so as to avoid confusion and obscurity.  We are however,  constrained to note that having come to a  finding about  the  inconsistency and obscurity in the process,  the High  Court  thought it fit to decry the claim of  the  writ petitioner  being  the appellant herein on the plea  of  the employers  right but the documents through which the  right flows  indicates  a contra situation and as such the  action suffers  from the vice of arbitrariness and unreasonableness

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warranting  intervention of this Court.  On the wake of  the above,  the  order  of the High Court stands set  aside  and quashed.   Consequently the appointments are also set aside. The  Public  Service Commission is directed to complete  the process of selections in terms of the existing rules so that both  the  written  and  the viva voce test  be  taken  into consideration for the purpose of effecting appointments.  It is  made clear that no further advertisement or  examination shall  take place but reconsideration of the entire  process be effected upon due reliance on the written as well as viva voce  test.   The process be completed within a period of  3 months from the date thereof.  It is further made clear that the  appointments  if any, already made shall continue,  but shall  be  subject  to  the further  results  which  may  be declared  by  the  Public Service Commission  in  regard  to filling  up of the posts of Block Development and  Panchayat Officers.   The  appeal  thus stands  allowed.   There  will however be no order as to costs.