Permod Kohli, J.
1. Appellants in Letters Patent Appeal Nos. 15/2005; 16/2005; 24/2005; 29/2005; 30/2005 31/2005; and 36/2005; are the selectees for the post of Assistant Surgeons in the Health Department of the Jammu and Kashmir State. LPA (SW) No. 37/2005 has been preferred by the J&K; Public Service Commission.
2. All these appeals are directed against judgment dated 23-12-2004 passed in batch of writ petitions whereby selection for the post of Assistant Surgeons made by the Public Service Commission on the requisition of Health and Medical Education Department has been set aside by the learned Single Judge.
3. It is relevant to notice the resume of the facts as emerge from the impugned judgment and the pleadings of the parties before the writ court/us.
4. 31 posts of Assistant Surgeons were referred to the J&K; Public Service Commission (hereinafter called the Commission) by the Health and Medical Education Department vide its requisition No. HT(GAD)131/95 dated 11-12-2002. This was followed by another communication No. HS(GAD) 131/95 dated 20-1-2003 whereby 190 more posts of Assistant Surgeons were referred to the Commission. Three posts in the open category were already pending for selection with the Commission prior to these references. In all 224 posts came to be referred with the following break-up:
Open Merit 03SC 08ST 38RBA 139LAC 23Social Caste 15
5. On receipt of the requisitions the Commission notified 221 posts for selection vide its Notification No. 06/PSC of 2003 dated 23-6-2003. This notification confined itself to reserve category vacancies only. The Commission in its wisdom did not notify three Open Merit category vacancies pending for selection with it. The last date for receipt of the applications was fixed at 7-8-2003 by personal delivery and 14-8-2003 by post. While the process was going on another communication was sent to the Commission by the Health and Medical Education Department vide its No. HD (GAD)/Gen-53/2002 dated 7-11-2003 referring 206 more posts in the following maner:
Open Merit 111RBA 42SC 16ST 20Social Caste 04LAC 07Handicap 06
6. Pursuant to the afore-said requisition 209 posts including 3 from Open Merit already pending with the Commission were notified by the Commission vide its fresh Notification No. 16/PSC of 2003 dated 28-11-2003. Last date for receipt of the applications was 9-12-2003 for personal delivery and 26-12-2003 for postal delivery.
7. On the basis of the afore-mentioned references and two notifications issued by the Commission as many as 430 vacancies became available for selection for different categories :
Open Merit 114RBA 181ST 56SC 24ALC 30Social Caste 19Handicap 06.
8. The notifications issued by the Commission also prescribed the qualifications required for the post. In addition to the qualifications and other eligibility criterion as stipulated in the Notification it was also notified that the qualifications prescribed are minimum and mere possession of the same does not entitle the candidate to be called for interview. The Commission reserved the right to restrict the number of candidates to be called for interview to a reasonable limit on the basis of higher percentage of marks secured in the qualifying examination and or qualifications and experience higher than the minimum prescribed in the advertisement notice as may be fixed by the Commission or by holding screening test as provided in Rule 40 of the Jammu and Kashmir Public Service Commission (Business and Procedure Rules) 1980. Where the Commission considers that the number of candidates who have applied for the post to be filled up by direct recruitment on the basis of interview is large and is not convenient or possible for the Commission to interview all the candidates, the Commission may restrict the number of candidates called for interview to a reasonable limit on the basis of higher percentage of marks secured in the qualifying examination and/or qualifications and experience higher than the minimum prescribed screening test. It was further provided that in the event of written screening test, the syllabus of the same shall be made known to the candidates at least one month before the date of holding such test and the marks secured by the candidates in the screening test shall not be taken into account for determining the final merit. The notification further stipulated that the candidates to be called for interview on the basis of screening test shall not be more than three times the number of clear vacancies referred to the Commission. As many as 1957 applications were received by the Commission in response to the afore-said two notifications. Out of total applications received 1464 candidates applied against 114 Open Merit category vacancies; 226 against 118 RBA category, 110 as against 24 Scheduled Caste category; 101 as against 56 ST category; 21 as against 30 ALC category; 33 as against 19 Social Caste Category; 21 as against 6 Handicapped Category vacancies. On receipt of the applications the Commission decided to summon all the candidates for interview without applying any short-listing criterion as according to the Commission the number of the candidates applying for the post was within the reasonable limit and it was in the ratio of 4.5: 1. The Commission proceeded to make selection in accordance with Rule 51 of 1980 Rules as framed by the Commission earlier. As many as three selection committees were constituted for holding the interview. Each committee comprised of two members of the Commission with an expert from All India Institute of Medical Sciences, New Delhi or from Medical Colleges Lucknow or Amritsar of the Rank of Professor Addl Professor who were otherwise Heads of the Departments. Interviews were conducted by these selection committees from 10-5-2004 to 30-5-2004 at Srinagar and from 1-6-2004 to 12-6-2004 at Jammu. It is an admitted case of the parties that on average 60 candidates were interviewed in a day, by utilizing 15 to 17 minutes on each candidate.
9. While the interviews were in progress the Commission received two communications from the Health and Medical Education Department vide No HD(GAD)131/95 dated 19-5-2004 and No. HD (GAD) 131/95 dated 5-6-2004 whereby 22 and 142 more vacancies of the Assistant Surgeons respectively were referred to the Commission for selection with the following break-up:
Open Merit 88RBA 32SC 13ST 17Handicap 05Social Caste 04LAC 05
10. Admittedly, no fresh notification was issued by the Commission inviting applications against these two references for 164 vacancies and these vacancies were also utilized by the Commission for making selection from the candidates who had applied in response to two earlier Notifications dated 23-6-2003 and 28-11-2003.
11. On completion of the interviews the Commission selected 565 candidates as against 594 referred vacancies and made recommendations for their appointment in the following order:
Open Merit 220RBA 191ST 73SC 37ALC 23PHC 11
The recommendation was made for 565 candidates to the Government vide communication No. PSC/DR/AS/2003 dated 28-6-2004 read with letters dated 1-7-2004; 17-7-2004; 20-7-2004 and 21-7-2004.
12. The Selection/ recommendations made by the Commission referred to above became subject matter of challenge in number of writ petitions filed by un-successful candidates. The writ Court has noticed in extenso, the allegations made in different writ petitions. In sum and substance the allegations as contained in various writ petitions as noticed by the writ Court are summarized as under:
(I) The selection based upon Rule 51 of the Public Service Commission (Business and Procedure Rules) 1980 with 100 marks for interview and 40 marks for academic and either factors is illegal and un-constitutional;
(II) The Commission selected kiths and kins of the Members of the Commission and influential persons like Ministers in the present and previous Government. It has been alleged that kiths and kins of four out of five members of the Commission were given berths in the selection list which include Ms Sheliza Tikoo D/O Mr. V.K. Tikoo, Member Commission; Miss Bisma Sharief Khan D/O Mr. M.S. Khan Member Commission; Rakesh Banal S/O Mr. C.L. Banal, Member Commission; Ms Gulnaz Choudhary and Athar Bashir Khan, daughter and son in law of Mr. Bashir Ahmed Choudhary, Member Commission; Ms Rifat Jan and Nusrat Jan and Sajad Ahmed, daughters and son respectively of Former Minister in National Conference Government Mr. Mohd Shaffi Uri; Shahgufta Rahim W/O Mr. Sajad Shafi Daughter-in-law of Mr. A.R Rather, Ex- Finance Minister in NC Government; Miss Lubana Shafi D/O Mr. Mohd Shafi Uri, Ex-Minister; Irshad Ahmed Shah S/O Mr. Hakim Mohd Yaseen Revenue Minister in the present Government; Ms Nighat Rashid Dar D/O Ab. Rashid Dar, Chairman, Legislative Council; Ms Malika daughter in law of Mr. G.H. Mir, Minister for Housing and Urban Department, in the present Government;
(III) 164 posts referred to the Commission were not advertised and the selection has been made against these vacancies;
(IV) No Screening Test was held which vitiates the selection;
(V) The candidates have been summoned for interview in excess of the ratio of 1 : 3 which is impermissible;
(VI) Candidates have been selected in the Scheduled Caste Category with fake certificates.
13. After taking note of the above allegations and the grounds for challenging the selection, the learned Single Judge has also noticed that some of the non-selectees have higher percentage of marks in the qualifying examination and some of them particularly one Dr. Sunil Bhat is a Gold Medalist. He also secured 4th rank in Engineering Entrance Examination and 3rd rank in Medical Entrance Examination and also secured over all first position in all the professional examinations. Another candidate noticed by the writ Court Dr. Nitin Vermani is said to have cleared Post-Graduation Entrance Examination in 2001 and 2002 and has 2 1/2 years experience in Post Graduation Department of Radio-Diagnosis. Similarly some other candidates have been referred to who had better academic merit.
14. The writ Court formulated as many as following five questions for consideration in writ petition:
(A) Whether the criteria for selection envisaged by Rule 51 of the Rules of 1980 is invalid;
(B) Whether the selection is vitiated for the reason of non-holding of the screening test by the Commission for calling the candidates for interview?
(C) Whether the selection made in respect of 164 posts without being advertised is bad in law?
(D) Whether the selection is vitiated for having been made in exercise of power actuated by malafide? (E) Whether the petitions of the petitioners are premature and not maintainable?
15. The appellants before us have challenged the findings/ observations of the writ Court on all the five questions noticed above. We will take up the above questions in seriatim for examination of the findings/observations of the learned Single Judge based upon factual backgrounds as noticed above and the legal position.
Question A
Learned Single Judge in its findings on this question has ruled that selection based upon Rule 51 of Public Service Commission (Conduct of Business and Procedure) Rules 1980 which provide 100 marks for the interview and 40 marks for academics etc is violative of Articles 14 & 16 of the Constitution of India as also the judgments of the Apex Court. In particular emphasis has been laid on a Full bench judgment of this Court in Dr. Inder Prakash's case which finally culminated in the decision of the Apex Court dated 20-4-2004 in Special Leave Petition filed by the Commission as also the writ petitioners in the said case and others.
16. For the purposes of brevity Rule 51 which has been made the basis for selection and which is the star point of challenge to the selection is being quoted here-under:
'51. The assessment at an interview shall be based on the following principles:A. Performance of the candidate in the Viva voce 100 markstest.B. Academic merit.(i) Percentage of marks obtained in the basic(i.e. .. 25 marksminimum) qualification prescribed for the post).(ii) Higher qualification than the basic.(minimum) prescribed for the post such asDiploma or degree in the concernedspeciality/sub-speciality subject/discipline.(a) Diploma ..- 2 marks)subjectto maximum(b) Degree ..-5 marks) of 5marks.C) Experience acquired by the candidate in theconcerned speciality/sub-speciality/subject/discipline.(i) Exceeding 1 year but not 2 years .. 2 Marks.(ii) For two years and above ..01 marks for everyfull year subjectto total 05 marks.(D) Sports/Games, Distinction in Sports/Games(i.e. 3 marks.representing a University, State or Region inany Sports/games.(E) Distinction in NCC activities 2 marks.(i.e. having held the rank of Junior officer orSenior under officer or having passed the topgrade certificate examination of NCC. TotalA&E;
17. M/s Z.A. Shah and G.A Lone, learned Counsel appearing for the appellants have assailed the findings of the learned Single Judge on the question of validity of Rule 51 and its implications as also application to the present selection. While challenging the findings of the learned Single Judge it has been contended that Rule 51 has not been declared invalid by the Full Bench of this Court and the Apex Court in Dr. Inder Prakash's case. It has been urged that there is no thumb rule which prescribes any upper limit for marks for interview/viva voce, particularly when the selection is based upon interview alone and in any case Rule 51 is not per-se bad. It is further contended that the judgment of the Full bench in Inder Prakash's case has merged into the judgment of the Apex Court dated 20-4-2004. Apex Court has examined the selection of Lecturers in the Medical Education Department in context of Rule 8 of Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules 1979 and returned a finding that the selection ignoring the criterion statutorily prescribed under the Recruitment Rules is impermissible. It is accordingly submitted that the validity of the Rules and the marks fixed for viva voce under Rule 51 were considered in context of Rule 8 of the Recruitment Rules and it has been held to be in contravention of Rule 8 of the Medical Education Recruitment Rules and therefore, the findings of the Apex Court in Inder Prakash's case are relevant for the purposes of selection/recruitment as far as the Medical Education (Gazetted) Service is concerned and it has no application in so far as the selection in issue in the present petitions/LPAs..
18. In addition to above, it has been stated that the Apex Court in none of its judgment has prescribed any upper limit for viva voce where the selection is not based upon the written test followed by the interview.
19. A Full Bench of this Court in case Dr. Inder Prakash v. State of J&K; and Ors. (SWP No. 211/94, decided on 30-7-1999) while examining the validity of selection of Lecturers in the Medical Education Department of the State in the context of Recruitment Rules, particularly Rule 8 observed as under:
'It bears out that approach of the Supreme Court so far has been that marks to the extent of 40% to 50% for viva voce where selection is made on the basis of record and viva voce, are proper marks,. In the instant case the selection is allegedly based on record and viva voce. 40 marks have been assigned for record and 100 for viva voce which appear to be excessive and the judgment delivered in Satpaul's case ( 1995 Suppl (1) SCC 206) applies to the present case on all fours.
X x x x x
20. Mr. Raina, learned Counsel appearing for the commission has submitted that the validity of these Rules has already been examined in SWP No. 227/93- Abdul Wahid Zargar and Ors. v. State and Ors. decided on 2-2-1994, holding the same to be valid. Rule 51 though held good by the Division Bench vis-a-vis the selection of Engineers, there is stark difference in the Rules of both the services viz., J&K; Engineering (Gazetted) Service and Medical Education (Gazetted) service. In Engineering Service there is no such rule providing statutory method of selection as is found in Rule 8 of Rules 1979.
21. The judgment of the Supreme Court in Satpaul, Anzar Ahmed, C.P. Kalra are pointer to the fact that marks for interview should not be more than 40% to 50% in a selection where it has to be made on the basis of record and viva voce. Rule 51 providing 100 marks for viva voce against 40 for record, makes a departure and is apparently contrary to the law laid down by the Supreme Court and necessitates re-consideration of Rule 51 for the added reason that there is no consensus of judicial opinion rendered in Abdul Wahid Zargar's case vis-a-vis the judgments of the Supreme Court that marks for viva voce test could exceed the marks assigned for record/academic merit, where the selection is made on the basis of interview alone. There is another reason also that Rule 51 has not taken care of Rule 8 of Service Rules 1979, consequence whereof is that the statutory method of selection has not been comprehensively followed and adopted in the rule. For these reasons Rule 51 is required to be re-cast.'
22. Admittedly this judgment became subject matter of appeal before the Apex Court. It is also admitted case of the parties that during the pendency of Special Leave Petition there was no stay of the Full Bench judgment of this Court nor there was any other interim direction. SLPs were preferred by the Public Service Commission, the original writ petitioner as also some of the respondents therein. The Apex Court while disposing of all the SLPs examined the validity of selection made on the basis of Rule 51 and R-8 of the Medical Education (Gazetted) Service Recruitment Rules 1979. In para_23 the Apex Court has noticed the arguments advanced in respect to the selection. Same is quoted below:
'23. Mr. Ranjit Kumar, learned Counsel appearing on behalf of the appellant would submit that Rule 51 of the 1980 Rules framed by the Public Service Commission is not statutory in nature. He would urge that keeping in view the advertisement issued, the Commission was bound to scrupulously comply with the requirement as regards qualification etc and should have strictly applied Rule 8 of the 1979 Rules which is admittedly statutory in nature.'
23. The Apex Court realizing the arguments of the respective parties noticed that the recruitment rules namely, J&K; Medical Education (Gazetted) services Recruitment Rules, 1979 were framed under Section 122 of the J&K; Constitution, which is in perimateria with Article 309 of the Constitution of India and these rules being statutory in nature, the Public Service Commission was required to follow the same. The Apex Court further noticed in para 29 that Rule 8 mandates that while selecting the persons for the teaching wing of the service, the commission must have regard to the academic qualification of the candidate, teaching experience, research experience and previous record of work, if any. In the following para 30, it was further noticed that Rule 8 does not speak of any viva voce test. Following was accordingly observed in paragraphs 32,33 & 34:
'32. In its judgment, the High Court did not notice that in awarding marks for minimum qualification prescribed for the post, the commission did not award any mark at all to some respondents. It therefore, for all intent and purport had considered the candidature of the candidates only on the basis of 110 marks. If the marks awarded for sports/games and NCC activities are excluded as they are beyond the purview of Rule 8, and as it fixed 100 marks for viva voce test, a clear case of breach of the statutory rules had been made out. While the appellant had been given minimum marks in the viva voce test the other respondents who did not even fulfil the requisite criterion were awarded higher marks.
33. The High Court, in our opinion was correct in holding that Rule 51 providing for 100 marks for viva voce test against 40 for other criteria is contrary to the law laid down by this Court.
34. It is true that for allocation of marks for viva voce test, no hard and fast rule of universal application which would meet the requirements of all cases can be laid down. However, when allocation of such marks is made with an intention which is capable of being abused or misused in its exercise, it is liable to be struck down as ultra vires Article 14 of the Constitution of India.'
24. It is accordingly argued by the learned Counsel for the appellants that the selection of the Lecturers in the Medical Education Department has been held to be not in consonance with the para-meters prescribed under Rule 8 of the Recruitment Rules which are statutory in nature and therefore, the validity of selection has been examined in that context. The findings are therefore, relevant for the purposes of selection to Medical Education, Service and the directions for re-cast of the Rule are and should be read only in respect to the said service.
25. Reliance is also placed upon : (1994)ILLJ879SC ; 1995 (Supp) 1 SCC 206; : [1998]1SCR419 ; and : AIR1987SC454 . It has been further urged that a Division Bench of this Court had the occasion to examine the validity of Rule 51 and it has approved the Rule 51 in case Mohd Fayaz Qazi & ors v. State of J&K; and ors.
26. The findings of this Court in the afore-said DB judgment are binding upon this Division Bench unless disagreed to and referred to a larger Bench. A Division bench of this Court in case Mohd Fayaz Qazi v. State of Jammu and Kashmir & Ors, 2004 (3) JKJ 349 held as under:
'It is true that rule 51 has been struck down by a Full Bench of this Court in the case of Dr. Inder Parkash Gupta v. State of Jammu and Kashmir (SWP No. 211/1994 decided on 30-1-1999), wherein the earlier view expressed by the Division Bench in the case of Abdul Wahid Zargar was not approved. It was stated on behalf of respondents that special leave petition/civil appeal against the said judgmerit in Dr. Inder Parkash Gupta's case is pending in the Supreme Court. That apart, in our view, even if rule 51 of the Business Rules of the Commission were to be held to be invalid, the question still would remain as to whether the impugned selection can be invalidated on account of allocation of 71% marks for the interview/viva voce test as against 29% allocation of marks for the record. From the break up of the allocation of marks under rule 51 of the Business Rules of the Commission, it appears that in making selection, at the time of interview, the Commission/Experts must have taken into account the over all personality of the candidates as evidenced by not only his academic merit which accounts for 25 marks, besides 5 marks for the higher qualification, also his experience in the concerned speciality/sub-speciality/subject/discipline, and his activities in sports/games and the NCC. In this connection it may be apposite to refer to the observation of the Supreme Court in the case Dr. Anita Puri (Supra) as under:
'In adjudging the suitability of person for the post, the expert body like Public Service Commission in the absence of any statutory criteria has the discretion of evolving its mode of evaluation of merit and selection of the candidate. The competence and merit of a candidate is adjudged not on the basis of the qualification he possesses but also taking into account the other necessary factors like career of the candidate throughout his educational curriculum, experience in any field in which the selection is going to be held, his general aptitude for the job to be ascertained in course of interview extracurricular activities like sports and other allied subjects, personality of the candidate as assessed in the interview and all over germane factors which the expert body evolves for assessing the suitability of the candidate for the post for which the selection is going to be held.'
27. The observations made in the case of Lila Dhar v. State of Rajasthan (Supra) quoted hereinabove (reiterated in Ashok Kumar Yadav's case) highlighting the significance of the interview/viva voce test may also be kept in mind while considering the correctness and propriety of the selection on the basis of both written test as well as interview or interview alone.
It is true that ideal situation would be that selection is made on the basis of both written test and viva voce test and the viva voce marks are kept at the minimum especially for recruitment to the entry posts, but it is not for the Courts to lay down the basis of selection. It is for the Government to do so.'
28. In Ashok Kumar Yadav's case a Constitution Bench of the Apex Court examined the validity of selection made to the State Civil Service. Almost similar allegations were made in the said case. High Court allowed the writ petitions and set aside the selection. However, the Apex Court reversed the judgment of the High Court. It is useful to refer to some of the observations of the Constitution Bench in the said case.
In Ashok Kumar Yadav's case : AIR1987SC454 regulations provided 400 marks in aggregate in a written examination in 5 compulsory subjects and 200 marks in viva voce in respect to ex-service officer and 700 marks in aggregate for written examination in 8 subjects and 200 marks in viva voce in general category candidates. The marks for viva voce in respect to ex-service officer candidates were 33.3% and for general category 22.2% of total number of marks. A Division Bench of the Punjab and Haryana High Court set aside the selection of the candidates holding the allocation of marks for viva voce as arbitrary. The Apex Court noticed the observations of Chinnappa Reddy J in Lila Dhar v. State of Rajasthan which are as under:
'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 be posts and appointments where the only proper method of selection may be by viva voce test. Even in the case of admission to higher degree course, 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 matters by Courts. The expert 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.'
29. After noticing above following observations were made regarding weightage to be given to the marks in the process of selection:
'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 such a high percentage of marks as 33.3% opens the door wide for arbitrariness and in order to diminish, if not eliminate the risk of arbitrariness, the percentage needs 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 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 what might be prescribed in case of younger candidates. The personalities 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 allocated for the viva voce test cannot be as high as 33.3%. 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 selection from the general category the spread of marks in the viva voce 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.'
30. It is further contended that if the selection is made upon oral interview, there is no upper limit. In case A.P. State Financial Corporation v. CM. Ashok Raju and Ors., (1994) 5 SCC 379 promotion to the post of Manager in A.P. State Financial Corporation was to be made on the basis of the following criterion:
'The weightages attached to various criterion for considering merits promotions to various cadre personnel is as follows: Additional Qualifications. 10%Length of service in the cadre 15%3 to 4 years 7/1/4%4 to 5 years 10/1/4%5 years and above 15%Performance appraisal 50%Interview 25%
31. The criterion particularly, the allocation of marks for performance appraisal and interview came to be challenged in various writ petitions by un-successful candidates who were not selected for promotion. A learned Single Judge of the Andhra Pradesh High Court allowed the writ petitions filed by un-successful candidates who were not selected for promotion and quashed the promotions on the ground that allocation of 50% marks to performance appraisal were excessive and allocation of 25 marks for interview was also on the higher side. Writ Appeals filed before the Division Bench were also dismissed with the modification. The Division Bench approved the allocation of 50% marks for performance appraisal. However, it reduced the interview marks from 25% to 15% and increased the marks for length of service from 15% to 25 %. An appeal preferred before the Apex Court by the A.P. State Financial Corporation was accepted and the Apex Court made the following observations:
'We are of the view that High Court fell into patent error in reaching the conclusion that 25% marks for interview in the facts of the present case were excessive. It is not disputed that no written test was prescribed for promotion to the post of Manager and above. This Court has authoritatively laid down that the ratio in Ashok Kumar Yadav case and other cases in line, is only applicable to those selections where written examination in addition to viva voce test is provided, no limit can be imposed in prescribing the marks for selection made for the posts of Unani Medical officer where 50% marks were allocated for interview. The question raised before this Court in Anzar Ahmad case was whether the law laid down by this Court regarding fixation of marks for interview in a selection based on written test and viva voce would apply to a case where there is no written test and the selection is made on the basis of academic performance and interview. The question was answered in the negative and allocation of 50% marks for viva voce test was upheld. While doing so, the earlier decisions of this Court in R. Chitralekha v. State of Mysore, A. Peeriakaruppan v. State of T.N., Nishi Maghu v. State of J&K;, Ajay Hasia v. Khalid Mujib Sehraveradi and Koshal Kumar Gupta v. State of J&K;, Lila Dhar v. State of Rajasthan, Ashok Kumar Yadav v. State of Haryana, Munindra Kumar v. Rajiv Govil, State of U.P. v. Rafuquiddin and Mehmood Alam Tariq v. State of Rajasthan were taken into consideration. We may quote the following passage from the judgment: (SSS p. 157 para 17)
'These observations would indicate that the matter of weight to be attached to interview and the allocation of marks for interview vis-a-vis marks for written examination can arise when written examination as well as viva voce test are both accepted as essential features of proper selection and there is also no hard and fast rule regarding the precise weight to be given to the viva voce test as against written examination can be laid down and the said weight must vary from service to service, according to the requirement of the service. The question of weight to be attached to viva voce would not arise where the selection is to be made on the basis of interview only.'
'9. We respectfully agree with the ratio in Anzar Ahmad case : (1994)ILLJ879SC and hold that the High Court was not justified in setting aside the allocation of 25% marks for the viva voce test.'
32. In case Kiran Gupta and Ors. v. State of U.P. and Ors., : AIR2000SC3299 the selection/ appointment to the post of Principals/Headmasters in the Education Department of the Utter Pradesh came to be challenged on the ground that the selection on the basis of Viva Voce is arbitrary and illegal. The statutory rules provided the direct recruitment to these posts by the State Public Service Commission on the basis of merit to be determined by interview of the candidates. Rule 12 (3) of the Rules framed under the State law prescribed that the Commission shall hold interviews of the candidates for each category of posts and prepare a panel of those found suitable for appointment in order of merit as disclosed by the marks obtained by them in the interview. The vires of the rules and consequently the selection was challenged. While considering the question of validity of selection made on the basis of interview alone, the Apex Court held as under:
'It is difficult to accept the omnibus contention that selection on the basis of viva voce only is arbitrary and illegal and that since allocation of 15% marks for interview was held to be arbitrary by this Court, selections solely based on interview is a fortiori illegal. It will be useful to bear in mind that there is no rule of thumb with regard to allotment of percentage of marks for interview. It depends on several factors and the question of permissible percentage of marks for an interview-test has to be decided on the facts of each case. However, the decisions of this Court with regard to reasonableness of percentage of marks allotted for interview in cases of admission to educational institutions/schools will not afford a proper guidance in determining the permissible percentage of marks for interview in cases of selection/appointment to the posts in various services. Even in this class, there may be two categories (i) when the selection is by both a written test and viva voce and (ii) by viva voce alone. The Courts have frowned upon prescribing higher percentage of marks for interview when selection is on the basis of both oral interview and a written test. But, where oral interview alone has been the criteria for selection/appointment/promotion to any posts in senior positions the question of higher percentage of marks for interview does not arise.'
33. In case Secretary (Health) Department of Health & F.W v. Dr. Anita Puri and Ors., : (1997)ILLJ110SC the Public Service Commission had formulated a similar criterion as in Rule 51. The marks to be allotted were as under:
'1. Academic achievement asper essential qualification. 20 marks2. Higher Qualification 2 1/2 marks3. Gold Medal 2 1/2 marks4. Sports 10 Marks5. Experience1 mark for each year subjectto maximum 5 5 Marks6. (1) Professional knowledge andaptitude for the job- 20 Marks(ii) Viva voce 20 Marks(iii) General Knowledge 20 MarksTotal: 100 Marks'
34. High Court of Punjab and Haryana set aside the selection of Dental Officers on the ground that the selection has been made arbitrarily. The Apex Court however, set aside the judgment of the High Court and up-held the above criteria and observed as under:
'The question for consideration is whether such sub-division of marks by the Commission on different facets and awarding only 2 1/2 marks for higher qualification can be said to be arbitrary? Admittedly, there is no salutatory rule or any guideline issued by the Government for the Commission for the purpose of evaluation of merit of the respective candidates. When the Public Service Commission is required to select some candidates out of a number of applicants for certain posts, the sole authority and discretion is vested with the Commission. The Commission is required to evolve the relative fitness and merit of the candidate and then select candidates in accordance with such evaluation. If for that purpose the Commission prescribes marks for different facets and then evaluates the merit, the process of evaluation cannot be considered to be arbitrary unless marks allotted for a particular facet is on the face of it excessive. Weightage to be given to different facets of a candidate as well as to the viva voce test vary from service to service depending upon the requirement of the service itself. In course of the arguments before us the learned Counsel for Respondent 1 had submitted that the awarding of 20 marks for viva voce and 20 marks for general knowledge out of 100 marks must be held to be on the manipulate the selection and, therefore, the High Court had rightly come to the conclusion that it was arbitrary. We are unable to accept this contention. This Court in the case of Ajay Hasia v. Khalid Mujib Sehravardi, while considering the case of selection wherein 33% marks was the minimum requirement by a candidate in viva voce for being selected, held that it does not incur any constitutional infirmity. As has been stated earlier the expert body has to evolve some procedure for assessing the merit and suitability of the applicants and the same necessarily has to be made only by allotting marks on different facets and then awarding marks in respect of each facet of a candidate and finally evaluating his merit. It is too well settled that when a selection is made by an expert body like the Public Service Commission which is also advised by experts having technical experience and higher academic qualification in the field for which the selection is to be made, the courts should be slow to interfere with the opinion expressed by experts unless allegations of malafide are made and established. It would be prudent and safe for the courts to leave the decisions on each matters to the experts who are more familiar with the problems they face than the Courts. If the expert body considers suitability of a candidate for a specified post after giving due consideration to all the relevant factors, then the Court should not ordinarily interfere with such selection and evaluation. Thus considered, we are not in a position to agree with the conclusion of the High Court that the marks awarded by the Commission was arbitrary or that the selection made by the Commission was in any way vitiated.'
35. This judgment has been relied upon by the Division Bench of this Court in Mohd Fayaz Ahmed's case noticed above.
36. From the ratio of the judgments referred to above, it becomes crystal clear that the law recognizes four modes of selection:
(a) By written test alone;
(b) By interview alone;
(c) By written test followed by interview; and
(d) By interview with weightage to academics etc.
What has emerged from the above decisions is that the question of weightage to be attached to the viva voce arises only where the viva voce follows the written test.
37. The question of weightage does not arise where the selection is made solely on the basis of interview or even where some weightage is given to the academics and such a selection is also considered to be on the basis of the interview alone.
38. We have scanned the allegations made in the writ petition as also noticed by the learned Single Judge in the impugned judgment. There is no specific allegation that the non-selectees were treated un-fairly nor there is any allegation of tampering etc. except in respect to a small Section of the selectees who are said to be influential persons being relations of members of Public Service Commission present and former Ministers/politicians and persons at the helm of affairs in the Government. Admittedly, a Division bench of this Court in Mohd Fayaz Qazi's case while considering the weightage for the interview in terms of Rule 51 approved the rule (old) which held the field for number of years and is the basis for the selection in question in these appeals.
39. These findings were independent of pendency of the SLP in Dr. Inder Prakash's case. The Court also considered the ratio of the Full Bench judgment and up-held the selection made on the basis of Rule 51 (Old).
40. One of the grounds which appears to have persuaded the writ Court to set aside the selection made on the basis of Rule 51 (Old), is the direction of the Full Bench and the Apex Court for re-casting of Rule 51.
41. Learned Single Judge has specifically stated that the Full Bench directed for re-casting of the rule vide its judgment dated 30-7-1999 and even while Full Bench judgment was subject matter of SLP before the Apex Court, there was no stay of the judgment and the judgment remained operative and it was obligatory upon the Public Service Commission to have re-cast the Rule. Learned Single Judge has further observed that the judgment in Dr. Inder Prakash rendered by the Full bench finally merged in the judgment of the Apex Court dated 20-4-2004 and applying the doctrine of merger the judgment became operative on the date it was announced by the Full Bench. It is further observed that even if the date of judgment of the Apex Court is taken to be the date of operation, the judgment was delivered by the Apex Court on 20-4-2004 and interviews were held from 10-5-2004 to 30-5-2004 at Srinagar and from 1-6-2004 to 12-6-2004 at Jammu. Therefore, the Public Service Commission was required to re-cast the Rule before commencement of interview and make selection accordingly.
42. It is un-disputed that the Public Service Commission has now re-cast Rule 51 w.e.f. 25-10-2004. Notwithstanding the validity of the findings of the learned Single Judge we directed the Public Service Commission to re-arrange the merit of the candidates by applying the amended Rule 51. Amended Rule 51 reads as under:
'51. The assessment at a selection which is solely by means of an interview shall be based on the following principles:A. Performance of candidate in the viva voce test- 50 Marks.B. Academic Meriti. Percentage of the marks obtained in the degree (i.e. 30 MarksMinimum) qualification prescribed for the post-ii. Where Bachelors degree is prescribed as minimumqualification:a. One Year Postgraduate Diploma/Equivalent In the 01 MarkConcerned subject-b. Two years postgraduate Diploma/equivalent in The 02 Marksconcerned subject-c. Post graduate degree in the concerned Subject e.g. 03 MarksMA/M.Sc/M.Tech/MD/MS/M.Phil/equivalent.-d. Ph.D/DM/equivalent in the concerned Subject- 05 MarksWhere a Masters degree is prescribed as the minimum qualification.a. One Year Postgraduate Diploma/Equivalent in the 01 MarkConcerned subject-b. Two years postgraduate Diploma/equivalent in the 02 Marksconcerned subject-c. Post graduate degree in the concerned Subject e.g. 03 MarksMA/M.Sc/M.Tech/MD/MS/M.Phil/equivalent.-d. Ph.D/DM/equivalent in the concerned Subject- 05 MarksNote: Marks awarded shall be only for the highestdegree-obtained.Where Ph.D degree is prescribed as the minimumqualification:For Post-Doctoral Degree/Fellowship-Upto a 05 Marksmaximum ofC. Experience acquired by the candidate in the concerned 05 MarksSpeciality/sub-speciality subject/discipline-For every full year beyond eligibility requirements 01Mark subject to a maximum of 05 Marks.D. i. Sports/Games Distinction in Sports/Games (i.e. upto 03representing a University, State or Region in any marksregional or national sports/games )-ii. Distinction in NCC activities (i.e. having held the 02 Marksrank of Junior Under Officer or Senior Under Officeror having passed The top grade certificate examinationof NCC)E. Special attributes *relatable to record (to be Identified) 05 Marks*Till such attributes are identified for any post orcategory of posts, these marks shall be added to theAcademic Merit.TOTAL A to E 100 Marks'
43. Mr. D.C. Raina, learned Counsel for Public Service Commission has produced before us the re-arranged merit of the candidates by applying the amended/ re-cast Rule 51 and we have noticed that even after applying the re-cast/ amended rule and reducing the marks of interview to half and increasing the marks allocated for academic and higher qualifications and experience etc as many as 64 candidates go out from the select list in Open Merit Category, none from reserved category and only one candidate from the relations of the Members of the Commission and others who have allegedly influenced the selection.
44. Out of 565 selectees there is change only in respect to 65 candidates, which is a very little proportion of selection.
We have also examined the merit position of the selectees (in all categories except RBA where vacancies are still vacant ) whose academic position (in terms of points) is as follows:
Academic Merit in terms Number ofof Points (out of 25) candidatesSelectedOPEN CATEGORY:Between 17.00 - 17.47 0316.02 - 16.97 2415.00 - 15.97 7014.00 - 14.97 7213.00 - 13.98 7412.50 - 12.94 0311.25 - 11.87 04Total 250SCHEDULED CASTE CATEGORY:Between 16.00 - 16.25 0315.29 - 15.50 0214.05 - 14.97 1513.00 - 13.97 1812.62 - 12.92 03Total 41SCHEDULED TRIBE CATEGORY:Between 15.00 - 15.95 0814.00 - 14.95 2613.00 - 13.95 2912.07 - 12.97 03Total 66A.L.C. CATEGORY:16.85 - - 01Between 15.07 - 15.72 0714.08 - 14.97 1013.57 - 13.95 05Total 23SOCIAL CASTE CATEGORY:Between 15.00 - 15.52 0414.06 - 14.93 0913.35 - 13.95 0812.81 - - 0111.66 - - 01Total 23HANDICAPPED CATEGORY:17.02 - - 01Between 14.16 - 14.97 0513.06 - 13.95 0512.58 - - 01Total 12The marks awarded to the selectees in the interview is also in the following mariner: Marks Number of candidates.OPEN CATEGORY:Above 90 0289 1788 0887 1886 3785 5084 6583 2582 2281 0480 02SCHEDULED CASTE CATEGORY:79 0177 0175 0272 0271 0170 0568 0367 0366 0265 0464 0563 0362 0761 0158 01SCHEDULED TRIBE CATEGORY:70 0669 0168 0167 0466 0365 1964 0763 2562 0661 0160 0559 0158 0245 0240 03A.L.C. CATEGORY:65 0464 0163 0462 0661 0260 0358 0250 01SOCIAL CASTE CATEGORY:80 0172 0170 0165 0364 0463 0161 0160 0256 0254 0150 0240 04HANDICAPPED CATEGORY:72 0170 0269 0168 0265 0164 0160 0250 02As far as the position of the petitioners is concerned, their academic merit is as under:
Academic Merit in terms Number ofof Points (out of 25) Petitioners18.37 - - 0117.37 - - 01Between 16.02 - 16.95 0715.00 - 15.90 1914.02 - 14.95 4113.00 - 13.97 4712.08 - 12.90 1611.25 - 11.66 03Marks awarded to the petitioners in the interview are in the following manner: Marks Number of petitioners.85 0184 0183 0482 0681 0180 2478 0476 0275 2272 0171 0170 2265 0862 0160 0759 0156 0255 0550 1345 0240 0235 0330 01
45. Keeping in view the marks allocated for academic qualification which cannot be tempered and there is no allegation of tempering, we do not find that the marks given in Viva Voce are so excessive so as to prick the conscious of the Court and/or capable of converting merit into de-merit and de-merit into merit.
46. The Apex Court in Sat Pal and Ors. v. State, 1995 (Supp) (1) SCC 206 observed that 85% marks out of 100 in viva voce is excessive.
47. In Jaswinder Singh v. State of J&K; and Ors., : (2003)2SCC132 the Apex Court while noticing various earlier judgments observed:
'In Mehmood Alam Tariq v. State of Rajasthan prescription of 33% as minimum qualifying marks of 60 out of total 180 marks set apart for viva voce examination does not by itself incur any constitutional infirmity. In Manjeet Singh v. ESI Corpn. This Court held that in the absence of any prescription of qualifying marks for the interview test the same 40% as applicable for written examination was reasonable. In Anzar Ahmed v. State of Bihar this Court exhaustively reviewed the entire case law on the subject including the one in Ashok Kumar Yadav case and upheld a selection method which involved allocation of 50% marks for academic performance and 50 marks for the interview. The very observations in Ashok Kumar Yadav case would go to show that there cannot be any hard and fast rule of universal application for allocating the marks for viva voce vis-'-vis the marks for written examination and consequently the percentage indicated therein alone cannot be the touchstone in all cases. What ultimately required to be ensured is as to whether the allocation, as such, is with an oblique intention and whether it is so arbitrary as capable of being abused and misused in its exercise.'
This view has been reiterated in Vijay Syal v. State of Punjab and Ors., : AIR2003SC4023 .
48. It is true that for allocation of marks for viva voce test no hard and fast rule of universal application which would meet the requirements of all cases can be laid down. However, when allocation of such marks is made with an intention, which is capable of being abused or misused in its exercise, it is liable to be struck down as ultra vires of Article 14 of the Constitution of India. The test laid down by the Apex Court is that for the allocation of such marks, it is the intention which is capable of being abused or mis-used. It is not the case of the writ petitioners that Rule 51 was formulated and marks for viva voce were fixed with intention to abuse or mis-use the same and rightly so as this Rule is in vogue for the last 25 years. Hundreds of selections have been made on the basis of this Rule and it stood the 'judicial scrutiny' by this Court as also the Apex Court. The fixation of marks for viva voce thus cannot be said to be with any intention to abuse or mis-use.
49. On the basis of the ratio of various judgments noticed above and the Division Bench judgment in Mohd Fayaz Qazi's case, We are of the considered opinion that there is no question of weightage to be attached to interview where the selection is made on the basis of interview alone or even where the academics are given some Weightage.
50. Apart from the validity of selection based upon Old Rule 51 another argument has been advanced by the learned Counsel for the appellants that the judgment in Inder Parkash's case is prospective and therefore, the validity of selection based upon un-amended Rule 51 for which the process was initiated much prior to the date of the judgment cannot be called into question. The argument is based upon following paragraph of the Apex Court in Inder Parkash's judgment : (2004)6SCC786 :
'x x x We hope and trust that the State of Jammu and Kashmir as also the Jammu and Kashmir Public Service Commission shall make all endeavours to see confidence in the statutory bodies restored, and they would henceforth comply with legal requirements strictly and scrupulously'.
51. It is stated that by the use of the word 'henceforth' in the afore-said direction it is apparent that the judgment is prospective and should apply to the selections for which the process may be initiated after the date of the judgment. The word 'henceforth' has been defined in Black's Law Dictionary (Revised 4th Edition) as under:
'HENCEFORTH: A word of futurity, which, as employed in legal documents, statutes, and the like, always imports a continuity of action or condition from the present time forward, but excludes all the past.'
52. Admittedly the selection process was initiated by issuance of first Notification by the Public Service Commission on 23-6-03 and the judgment of the Apex Court was pronounced on 25-4-2004 when the selection process was at the advance stage and date for interview had already been fixed. The Apex Court in case Baburam v. C.C. Jacob and Ors., : (1999)IILLJ983SC observed as under:
'The prospective declaration of law is a devise innovated by the apex Court to avoid reopening of settled issues and to prevent multiplicity of proceedings. It is also a devise adopted to avoid uncertainty and avoidable litigation. By the very object of prospective declaration of law, it is deemed that all actions taken contrary to the declaration of law prior to its date of declaration are validated. This is done in the larger public interest. Therefore, the subordinate forums which are legally bound to apply the declaration of law made by this Court are also duty bound to apply such dictum to cases which would arise in future only. In matters where decisions opposed to the said principle have been taken prior to such declaration of law cannot be interfered with on the basis of such declaration of law.'
53. In case A.P. Public Service Commission, Hyderabad and Anr v. B.Sarat Chander and Ors., : (1990)IILLJ135SC the Apex Court while considering the meaning of word 'selection' and while defining the selection has held as under:
'If the word 'selection' is understood in a sense meaning thereby only the final act of selecting candidates with preparation of the list for appointment, then the conclusion of the Tribunal may not be unjustified. But round phrases cannot give square answers. Before accepting that meaning, we must see the consequences, anomalies and uncertainties that it may lead to. The Tribunal in fact does not dispute that the process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment. Indeed, it consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examination, calling for interview or viva voce and preparation of list of successful candidates for appointment.'
If the word 'henceforth' as used in Inder Parkash's judgment is to be construed and applied it obviously mean future selection for which the process may be initiated after the judgment. By no stretch of imagination, it could mean application of the law or the directions of the Apex Court midway when the selection is already on and only as part of it remains to be completed. The meaning of selection as laid down by the Apex Court in the afore-said judgment include within its compass all the stages commencing from the advertisement till the preparation of select list. Therefore, the word 'henceforth' has to be construed in the context of future selection and not the pending one.
54. In Y.V. Rangaiah and Ors. v. J. Sreenivasa Rao and Ors., : (1983)IILLJ23SC , the question arose regarding application of amended rules governing the selection. The Apex Court in this case held that the vacancies occurring before the amendment of the rule, will be governed by the old un-amended rule, and not the amended rule. The Court observed as under:
'The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wide basis and therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.'
55. In State of Uttranchal v. Sidarth Srivastava, : AIR2003SC4062 the Apex Court ruled that 'Rules in force at the time of initiation of selection process have to be followed.'
We are of the considered view that the direction in Inder Parkash's case in respect of the re-cast of Rule 51 is in respect to future selection for which the process might have been or may be initiated after the judgment of the Apex Court dated 20-4-2004 and these directions have no application as far as the selection in question is concerned for which the process was initiated on 23-6-2003. Therefore, the validity of the selection cannot be questioned on the touch stone of amended rule and the directions of the Apex Court in Inder Praksh's case even if the interpretation sought to be placed by the learned Single Judge is accepted. We are in disagreement with the findings of the writ Court on this question and we hold that the selection in question is neither violative of Article 14 & 16 of the Constitution of India nor the directions of the Court in Inder Parkash's case relied upon by the learned Single Judge. Question-B
56. The advertisement notice issued by the Commission contained the following stipulations:
'The prescribed qualifications are minimum and mere possession of the same does not entitle the candidates to be called for interview. Where the Commission considers that the number of candidates who have applied for the post to be filled up by direct recruitment, as the basis of interview is large and is not convenient or possible for the commission to interview all the candidates, the commission may restrict the number of candidates called for interview to a reasonable limit on the basis of Higher percentage of marks secured in the qualifying examination and/or qualifications and experience higher than the minimum prescribed in the advertisement notice as may be fixed by the commission or by holding Screening Test as provided in Rule 40 of J&K; Public Service Commission (Business & Procedure Rules 1989).'
57. These stipulations are based upon Rule 40 of the J&K; Public Service Commission (Business and Procedure) Rules 1990, which reads as under:
'In every notification inviting applications for a post it shall be mentioned that the prescribed qualifications are minimum and mere possession of same does not entitle candidates to be called for interview. Where the commission consider that the number of candidates who have applied for a post to be filled up by direct recruitment on the basis of interview is large and it is not convenient or possible for the commission to interview all the candidates the commission may restrict the number of candidates for interview to a reasonable limit on the basis of higher percentage of marks secured in the qualifying examination and/or qualifications and experience, higher than the minimum prescribed in the advertisement as may be fixed by the commission, or by holding a written screening test. Provided that in case of written screening test, the syllabus of the same shall be made known to the candidates at least one month before the date of holding such test.
Provided further that the marks secured by the candidates in the screening test shall not be taken into account for determining the final order of merit.
Provided further that the number of candidates to be called for the interview on the basis of screening test shall not be more than three times of number of clear vacancies referred to the commission.'
58. The writ Court on interpretation of Rule 40 has held that the Commission was not justified in dispensing with short-listing procedure and in calling more candidate for interview than the prescribed ratio of 1: 3. The writ Court also relied upon certain observations in Ashok Kumar Yadav's case which have been extensively quoted in the impugned judgment.
With a view to examine the validity of the findings on this question, it is relevant to examine the scope and import of Rule 40 of J&K; Public Service Commission (Business and Procedure) Rules which has in fact been incorporated in the advertisement notice. The Rule prescribe where the Commission considers that the number of candidates who have applied for a post to be filled up by direct recruitment on the basis of interview is large and it is not convenient or possible for the commission to interview all the candidates the Commission may restrict the number of candidates for interview to a reasonable limit on the basis of higher percentage of marks secured in the qualifying examination and/or qualification and experience higher than the minimum prescribed in the advertisement as may be fixed by the commission or by holding a written screening test. The clear and un-ambiguous mandate of the rule is the opinion of the Commission. Where the Commission is of the opinion that number of candidates, who applied for the post is large and it is not convenient or possible to interview all the candidates it may resort to short listing by any of the prescribed modes. It is not the requirement of the rule that in each and every case the Commission is obliged to hold the screening test or adopt a short listing criteria. It is only in the event the Commission considers the holding of interview of all the candidates inconvenient or impossible. Admittedly as against 594 (430 advertised + 164 un-advertised) available posts as many as 1900 odd candidates applied. The Commission was of the opinion that the number of candidates is not large so as to adopt a short-listing criterion either on the basis of higher percentage of marks or by holding a screening test as according to the Commission 4.5 candidates applied against one vacancy. We fail to appreciate how such a decision of the Commission can be faulted with when the Commission considers that the number of candidates is not so large and holding of interview of all the eligible candidates was neither inconvenient nor impossible. As a matter of fact the interviews were held with effect from 10-5-2004 to 30-5-2004 at Srinagar and from 1-6-2004 to 12-6-2004 at Jammu by providing between 15 to 17 minutes to each candidate. This rule has two components-
(i) Whether to adopt a short listing criterion or not depending upon the number of candidates; and
(ii) In the event the Commission adopts a short-listing criterion and holds the screening test then the Proviso (2) of Rule 40 is attracted.
59. Where the Commission holds the screening test, the number of candidates to be called for interview on the basis of screening test should/ cannot to be more than three times the number of clear vacancies referred to the Commission.
60. Admittedly the Commission in its Wisdom decided not to hold any screening test and summoned all the candidates for the interview. In such a situation proviso (2) of Rule 40 is not attracted at all and thus the findings of the writ Court in respect to interpretation of Rule 40 cannot be accepted. In any case nothing has been brought on record to show that by calling more number of candidates for interview the writ petitioners have been prejudiced in any manner. Apart from the fact that no prejudice has been pleaded in the writ petition there is no findings by the writ Court that all or any of the writ petitioners or any other candidate has been prejudiced by not resorting to short listing criterion by the Commission.
61. As far as the reliance placed upon Ashok Kumar Yadav's case is concerned, in the said case, admittedly the written test was held wherein a minimum pass percentage was fixed as 45 marks in aggregate in the written examination and the candidates equivalent to as many as 20 times the vacancies were called for interview. It is in this context that the Apex Court was of the view that calling such a large number of candidates for interview is improper.
62. It is settled proposition of law that it is the exclusive domain of experts of the selection body to lay down procedure and method for making selection. The Court cannot interfere in such a procedure or methodology adopted by the experts selection body unless the same suffers from arbitrariness and denial of equal opportunity. In case Javid Rasool Bhat v. State of Jammu and Kashmir, : [1984]2SCR582 selection procedure for MBBS course in the State of Jammu and Kashmir was challenged. The Apex Court considering the validity of the selection procedure held as under:
'The Government should devise a selection procedure which would be above reproach. No rigid rules can be laid down in these matters by Courts. In the very nature of things it would not be within the province or even the competenance 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 wise expertise of medical academicians interested in the quality and integrity of medical education and public administrators conversant with various administrative and socio economic problems, needs and requirements. The Court's duty lies in preventing arbitrariness and denial of equal opportunity.'
63. The Apex Court in Javid Rasool Bhat's case (Supra) while observing that the marks allocated for the oral interview do not exceed 15% of the total marks and candidates are properly interviewed and relevant questions are asked with a view to assessing their suitability with reference to the factors required to be taken into consideration, held as under:
'8. It would be noticed that most of the observations made with a view to enable the Government to device a selection procedure which would be above reproach. It was never intended to lay down any hard and fast rules. 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 tickets to discover ways out, when the matters are more appropriately left to the wise expertise of medical academicians interested in the quality and integrity of medical education and public administrators conversant with various administrative and socio-economic problems, needs and requirements. The Court's duty lies in preventing arbitrariness and denial of equal opportunities.'
We do not find any valid reasons to agree with the findings of the writ Court on this question.
Question-C
64. As noticed above the fact is that 164 (22 + 142) vacancies were referred to the Commission vide requisition letters dated 19-5-2004 and 5-6-2004 respectively during the currency of the interviews. Admittedly these 164 vacancies were never advertised and the selection has been made against these vacancies on the basis of two earlier advertisement notifications dated 23-6-2003 and 28-11-2003. Parties are also not at variance that out of 164 vacancies 22 were anticipated and 142 vacancies were created on
account of up-gradation of various health institutions and opening of new health centers in the State. The break up of these vacancies as detailed in requisition dated 19-5-2004 is as under:
Open Merit: 11ST 03RBA 04HC 01Social Caste 01Total 22The break up of the vacancies vide requisition dated 5-6-2004 is as under:Open Merit: 77RBA 28SC 11ST 14Social Caste 03Handicaped 04LAC 05Total 142
65. Writ Court has relied upon the judgment of the Apex Court in Dr Narinder Mohan's case 1994 (2) SCC 603, wherein the Apex Court categorically ruled that the procedure prescribed for recruitment should be just and fair and reasonable opportunity be given to eligible persons by inviting applications through the public notification and recruitment should be according to the valid procedure and appointment should be of the qualified persons found fit for appointment to a post or an office under the State. The legal proposition that no selection/appointment can be made unless a public notice is given to all the eligible candidates providing them an opportunity to apply and compete is not in dispute. Though these 164 vacancies were not advertised as the requisition was received by the Public Service Commission during the currency of the interviews, yet the fact remains that the only such of the candidates were considered for selection against these vacancies who had applied in response to two public notices issued earlier by the Public Service Commission and no candidate who did not apply came to be considered. The contention on behalf of the respondents before the writ Court and before us is that all those candidates who became eligible after the last date of issuance of Notification dated 23-6-2003 and 18-11-2003 have been deprived of the opportunity to apply and be considered for such selection. There appears to be substance in this contention. On inquiry by the Court from the learned Counsel for the parties, we have been informed that no candidate has approached the Court challenging the selection who was not a party to the selection process. As a matter of fact all the writ petitioners before the writ court and the parties before us are un-successful candidates in the selection. No candidate who might have become eligible after the last date of notifications issued by the Public Service Commission has come forward to challenge the selection on the ground that he had been denied an opportunity to apply and take part in the selection. As emerge from record the Public Service Commission in its dis-claimer before the writ Court stated that after the issuance of the afore-said two Notifications there was no fresh batch of the Doctors who might have become eligible in the interregnum between the dates of the issuance of advertisement notices and the completion of selection process.
66. The writ Court also relied upon the observations in State of Bihar v. Madan Mohan Singh 1994 (3) SCC 308 wherein the Apex Court directed that the selection be confined only to advertised posts and the recommendations made by the Public Service Commission beyond the advertised vacancies were directed not to be accepted.
67. A similar issue came up for consideration in case Sandeep Singh v. State of Haryana and Anr., : (2002)10SCC549 the Apex Court held that at least the vacancies available up to the date of interview should be filled up from the same examination lest there is any statutory embargo for the same. In All India SC & ST Employees Association and Anr. v. A. Arthur Jeen and Ors., : [2001]2SCR1183 the advertisement was issued on 7-9-1995 inviting applications for 330 posts. On 17-5-1996 appointing authority (Railway Board) decided to have the panel prepared for 917 vacancies. The selection committee framed a panel for 917 candidates which was published. The selection came to be challenged before the Central Administrative Tribunal which quashed the panel of selected candidates on two counts; (i) increase in the vacancies from 330 to 917 and (ii) absence of guide-lines to 80% marks allocated for the selection. The decision of the CAT came to be challenged before the High Court which up-held the selection and directed the authorities to make appointment against 382 available vacancies. Those candidates who were in the panel upto 917 challenged the judgment before the Apex Court which held as under:
'Similarly the contention that the vacancies to be filled up could not be increased to 917 from 330 originally notified without there being subsequent notification is untenable in view of the changed situation as explained above. No fault can be found with the direction of the High Court to issue appointments only to available vacancies on merit out of the candidates included in the panel of selected candidates following rules of reservation and that too reserving 3% seats to physically handicapped instead of 2%. 382 vacancies would be available upto March 2002 possibly as of now all the 382 candidates may not be given appointment' the appointments may be given upto 330 or less. Further, the purpose of issuing notification and giving due publicity is to provide opportunity to as many eligible candidates as possible. Employment Notification No. 1 of 1995 was issued on 7-9-1995 and the decision was taken to increase the posts on 17-5-1996, the time gap was hardly 8 months, as many as 58,675 made applications and 32,563 were called for interview. It was quite probable that all candidates eligible and interested including a large number of local candidates, applied for the post. The time gap of about 8 months between the original notification and the decision to increase posts not being much, it cannot be said that many of the eligible candidates were deprived of applying for the posts looking to the requirements of eligibility. As already stated above, in the changed situation only 382 posts are to be filled up upto March, 2002. The selected candidates are to be appointed on the basis of merit following rules of reservation applicable to different categories. The process of selection was long-drawn and the candidates were made to appear for interview twice. The candidates and their families have been waiting for a long time from 1995 with great hope of getting jobs. Enormous money and man hours have been spent in completing the process of selection in preparing the panel of selected candidates. In this view there was no justification for the Tribunal to quash the entire panel of selected candidates.'
68. It is true that 164 vacancies referred to the Commission during the pendency of the selection process were not advertised. One can understand the grievance of the candidates who had become eligible after the last date for making applications as they stood prevented from applying and seeking their consideration for selection / appointment. But how the candidates who applied for the post in response to the earlier notifications and remained un-successful can throw a challenge on the ground that the vacancies were not advertised. In fact such of the candidates who had applied against the advertised vacancies and during the currency of selection the number of vacancies is increased have better chance of selection. With the increase in number of vacancies the competition amongst the applicants lessened. Earlier they were to compete against 413 vacancies. With the increase of 164 vacancies they were to compete against 597 vacancies with the same number of candidates. At least the writ petitioners cannot complain for the increase of the vacancies as it provided them better opportunity of selection. No prejudice has been shown to have been caused to them as they were the one who had an opportunity to seek their consideration against the additional vacancies also. Apex Court in All India SC & ST Employees Association v. A. Arthur Jeen and Ors. (Supra) has accorded approval to the selection of candidates against the vacancies referred during the currency of selection.
69. In the case before the Apex Court the gap between the date of advertisement and the requisition for fresh vacancies was few months, the Apex Court accordingly ruled that keeping in view such a short interval, the selection cannot be held to be invalid on the ground of non-advertisement of additional vacancies. The ratio of the afore-said judgment has its application to the facts of the present case. In the instant case the advertisement was issued on 23-6-2003 and the fresh vacancies were referred on 9-5-2004 and 12-6-2004 i.e. within a year or so. It has come on record that no fresh batch of Doctors passed out during this period. In any case no candidate who might have become eligible after the issue of advertisement notices has come forward claiming the right of consideration for the posts in question. Therefore, we are of the opinion that the selection is not vitiated in respect to 164 vacancies (22 available and 142 fresh), merely because no fresh advertisement was issued in respect to these vacancies.
70. The writ Court has relied upon judgment in Hoshiar Singh v. State of Haryana : [1993]203ITR456(SC) . In this case the requisition was sent for selection of six posts of Police Inspectors. These posts were advertised by issuing an advertisement notice. The process for written examination was completed. However, prior to physical test and interview the revised request for 8 posts was sent. The Recruitment Board however, recommended 19 candidates and the Government appointed 18 person out of 19 recommended as there was an interim stay with regard to one post. The Apex Court held that the recommendation for 19 persons by the Board of its own is impermissible as the requisition was only for 8 vacancies. Ratio of this case has no application to the facts of the present case. The appointment of candidates in excess of 8 vacancies was held to be bad for want of requisition by the Government. In the present case undisputedly there was requisition by the State Government to the Commission for 594 vacancies (430 + 164).
71. The Commission recommended 565 candidates for appointment. In fact, no recommendation has been made in respect to any vacancy for which there was no requisition with the Commission. Rather the recommendation has been made for less than the requisitioned vacancies. The writ Court appears to have mis-directed itself in applying the ratio of Hoshiar Singh's case and quashing the selection on this count.
72. Similar view was taken by the Apex Court in case of Madan Lal v. State of J&K; and Ors., : [1995]1SCR908 . In this case as against 11 requisitioned vacancies recommendation was made for 20 candidates and the Apex Court set aside the selection/appointment in excess of 11 vacancies. The Apex Court considering the relevant rule of Judicial Service held:
'A mere look at the rule shows that pursuant to the requisition to be forward by the Government to the Commission for initiating the recruitment process, if the Commission has prepared the merit list and the waiting list of selected candidates such list will have a life of one year from the date of publication in Government Gazette or till it is exhausted by the appointment of candidates, whichever is earlier. This means that if requisition is for filling up of 11 vacancies and it does not include any anticipated vacancies, the recruitment to be initiated by the Commission Could be for selecting 11 suitable candidates. The Commission may by abundant caution prepare a merit list of 20 or even 30 candidates as per their inter se ranking on merit. But such a merit list will have a maximum life of one year from the date of publication or till all the required appointments are made whichever event happened earlier. It means that if requisition for recruitment is for 11 vacancies and the merit list prepared is for 20 candidates, the moment 11 vacancies are filled in from the merit list the list gets exhausted, or if during the span of one year from the date of publication of such list all the 11 vacancies are not filled in, the moment the year is over the list gets exhausted. In either event, there-after, if further vacancies are to be filled in or remaining vacancies are to be filled in, after one year, a fresh process of recruitment is to be initiated giving a fresh opportunity to all the open market candidates to compete.'
73. In a recent judgment where requisition was sent in respect to additional vacancies over and above advertised, the Apex Court approved the recommendations of Public Service Commission in respect to all requisitioned vacancies including those for which no advertisement was issued. The Apex Court in case Suvidya Yadav and Ors. v. State of Haryana and Ors., : (2002)10SCC269 held as under:
'On being asked, Mr. Mahabir Singh, learned Counsel appearing for the state of Haryana stated that in fact a subsequent requisition had been made on 1-6-1993. In this view of the matter, on the admitted position that on the date of the recommendation made by the Public Service Commission on 1-10-1993 the Government's requisition was for posts more than 18 (in fact 37), we see no bar on the power of the Commission in recommending 30 names, which was the subject matter of challenge before the High Court. In fact the very judgment itself on which the learned Single Judge has relied upon in para 10 indicates the said position. Accordingly, we set aside the impugned order passed by the learned Single Judge and affirmed by the Division Bench in appeal and hold that the recommendations made by the Commission are in accordance with law and therefore, all the 30 names recommended are entitled to be appointed.'
74. In Prem Singh v. State of Haryana, 1996 (4) SCC 390 the Apex Court has held as under:
'From the above discussion of the case-law it becomes clear that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the court may not while, exercising its extraordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case.'
75. From the reading of this judgment it is apparent that there is no absolute bar for selection/appointment against the vacancies not advertised but referred to the selection authority for selection. The selection authority in appropriate cases in view of the policy of the State can recommend the candidates for selection in excess of advertised posts provided there are vacancies available and urgent need to man the posts. In view of legal position discussed above, we set aside the findings of writ Court on this question.
Question-D
76. The allegations as contained in the writ petition are that the Commission has selected close relatives of the members of the Commission and the wards of former and present ministers. As many as 13 candidates are alleged to have been selected who are relatives of the members of the commission and the politicians. As far as the factual averment is concerned, it has come on the record that out of five members of the Commission and the Chairman (5 + 1) wards of four members of the Commission have been selected. It is accordingly alleged that the commission has shown un-due favour to them for bringing them within the zone of selection. Meritorious candidates have been ignored and these candidates even with lesser academic merit selected. Similarly the close relatives of the Former and present Ministers have been selected.
77, The learned Single Judge has noticed with concern that the interview marks awarded to relatives of the members of the Commission, present and former Ministers and other high ups in position are exceptionally high so as to generate a feeling that the members of the selection committee were too soft and liberal in awarding marks for interview to ensure their selection. The writ Court has also noticed the marks awarded to these candidates in the interview. We have also gone through the record produced before us. The marks awarded to these candidates for their academic merit and interview are-
Roll No. Name Aca- Inter- Total Relation
demic view
merit marks
1364 Rakesh Banal 13.95 79 92.95 Son of Sh
C.L. Banal,
Member, PSC.
1336 Gulnaz 15.05 67 84.05 Daughter of Ch
Choudhary. Bashir Ahmed,
Member, PSC
1044 Bisma Bashir 14.10 87 103.10 Daughter of Sh
Khan M.S. Khan,
Member, PSC
1275 Shagufta 14.90 65 84.90 Daughter of Sh
Parveen Rather A.R. Rather, Ex
Minister
1480 Athar Bashir 15.17 87 104.17 Son-in-Law of
Khan Ch. Bashmir
Ahmed,
Member PSC
84 Nighat Rashid 13.82 70 83.82 Daughter of Sh
Dar Abdul Rashid
Dar, Chairman,
Legislative
Council
863 Irshad Ahmed 13.00 87 104.00 Son of Hakim
Shah Mohd Yaseen,
Revenue
Minister.
910 Rifat Jehan 13.95 86 101.95 Daughter of
Mohd Shaffi
Uri, Ex
Minister.
1670 Lubna Shaffi 16.43 86 102.43 Daughter of
Mohd Shaffi
Uri, Ex
Minister.
57 Nusrat Jahan 14.00 62 79.00
Sumnani
86 Sajjad Ahmed 13.46 65 78.46 S/O Sg Mohd
Geelani Shaffi Uri, Ex
Minister.
1656 Shalija Tiku 16.62 87 103.62 Daughter of Sh
V.K. Tiku
Member, PSC
983 Malooqa 14.16 89 105.16 Daughter in law
of G.S. Mir,
Minister for
Housing.
78. It has also been observed by the writ Court that the selection committee should have divided the marks reserved for interview amongst the members of the committee equitably and each member should have awarded marks to each candidate. It is further observed that award of lump sum marks by the selection committee has created a reasonable suspicion. The learned Single Judge has accordingly made the following observations:
'In such circumstances reasonable suspicion of giving undue advantage to the candidates whose instances have been quoted above by members of the selection committee concerned cannot be ruled out completely, more so, when according to learned Counsel for the Commission, the Commission has not maintained separate record as to how many marks were given by the expert to each candidate during the interview.'
79. It is pertinent to note that the writ Court has not returned any finding on the malafides or bias against any member/members of the Commission in respect to award of marks except the above observations. These findings are being seriously contested before us by the appellants. There are two limbs of the arguments on their behalf; (a) that the findings of the learned Single Judge that the selection committee should have sub-divided the marks of interview into different heads and awarded marks by each one of them separately has no basis as neither Rule 51 which lays down the criterion/procedure for selection nor any other rule or law enjoined upon the each members of the selection committee any obligation to sub-divide the marks for interview and award marks separately under different compartments.
80. Learned counsel for the respondents has relied upon judgment of the Apex Court in case Minor A. Peeriakaruppan v. State of Tamil Nadu and Ors., : [1971]2SCR430 . This case relate to admission to MBBS course in the State of Tamil Nadu. The selection Committee was authorized to give a maximum of 75 marks at the interview. It was further asked to award these marks on the basis of following tests :
(1) Sports of National Cadet Corps activities;
(2) Extra Curricular special services;
(3) General Physical condition and endurance;
(4) General ability; and
(5) Aptitude.'
The selection committee constituted to make selection however, awarded lump sum marks to each candidate in the interview. Considering the guide-lines provided to the selection committee the Apex Court observed -
'We may note that the committee had not divided the interview marks under various heads nor were the marks given on itemized basis. The marks list produced before us shows that the marks were given in a lump. This is clearly illegal.'
81. The Apex Court however, took a different view in a later judgment in case Lila Dhar v. State of Rajasthan and Ors., : (1981)IILLJ297SC . This case relate to the selection to the public service by written examination and by oral test. One of the challenge to the selection was the non-allocation of marks under different heads by the members of the committee. Justice Chinnappa Reddy speaking for the Bench observed as under:
'The second ground of attack must fail for the same reason as the first ground of attack. The Rules themselves do not provide for the allocation of marks under different heads at the interview test. The criterion for the interview-test has been laid down by the Rules. It is for the interviewing body to take general decision whether to allocate marks under different heads or to award marks in a single lot. The award of marks under different heads may lead to a distorted picture of the candidate on occasion. On the other hand the totality of the impression created by the candidates on the interviewing body may give a more accurate picture of the candidate's personality. It is for the interviewing body to choose the appropriate method of marking at the selection to each service. There cannot be any magic formula in these matters and courts cannot sit in judgment over the methods of marking employed by interviewing bodies unless, as we said, it is proven or obvious that the method of marking was chosen with oblique motive.'
82. In case Dr. Keshav Ram Pal v. U.P. Higher Education Services Commission and Ors., : (1986)ILLJ311SC , selection to the post of Principal in U.P. Higher Education Service was challenged and one of the grounds of challenge was failure to subdivide the marks allocated for the interview under various sub-heads. Interviewing Board was allocated 50 marks and there was no allocation of the marks for the various heads under which the merit of the candidates was judged. It was accordingly argued that without sub-dividing the marks no assessment could be made regarding academic attainments, teaching experience, administrative experience and suitability for the post of Principal. The Apex Court relying upon its earlier decision in Leela Dhar's case (Supra) and some other decisions, observed as under:
'We do not think that the Interviewing Board, in the present case, was under any obligation to sub-divide the marks under various sub-heads. The writ petition, is therefore, dismissed, but in the circumstances, without costs.
83. It has also been urged on behalf of the appellants that nothing has been brought on record by the writ petitioner to establish that by adopting the procedure of awarding lump sum marks by the selection committee any prejudice has been caused to them, particularly in absence of there being any such requirement of any rule, norm or guide-line.
84. We have gone through the findings of the learned Single Judge on this issue. Suffice it to say that the learned Single Judge has also not ruled in any manner that the course adopted by the selection committee has caused any prejudice much-less an adverse impact either on the functioning of the selection committee or has resulted or has caused any kind of prejudice to the non-selectees or un-due benefit to the selectees.
(b) The other limb of the argument is that the selection of the candidates who are relatives of the members of the selection committee and former and present Ministers has been made on merit without bestowing any favour to them. Mere fact of they being relatives does not per-se vitiate the selection unless, it is established that the selection committee has either acted illegally or with bias to ensure their selection.
85. We have compared the academic merit of the writ petitioners and the selectees who are relations of Members of the Commission and the former and present ministers as also the marks awarded to them in the interview. We have noticed their relative merit and found that the academic merit of the selectees in this category ranges between 13.00 to 16.62 points and of the writ petitioners is between 11.25 to 16.95 with two exceptions of 18.37 and 17.37. Some of the writ petitioners have also been awarded marks in interview equivalent to or even more than some of the selectees in this category, still they have not been able to find berth in the select list.
86. In case R. Chitralekha and Anr. v. State of Mysore and Ors., AIR 1984 SC 1823, the Apex Court while considering the scope of method to be adopted for interview and selection observed as under:
'In the field of education there are divergent views as regards the mode of testing the capacity and caliber of students in the matter of admissions to college. Orthodox educationists stated by the marks obtained by a student in the annual examination. The modern trend of opinion insists upon other additional tests, such as interview, performance in extra-curricular activities, personality test, psychiatric tests etc. Obviously we are not in a position to judge which method is preferable or which test is the correct one If there can be manipulation or dishonesty in allotting marks at interviews, there can equally be manipulation in the matter of awarding marks in the written examination. In the ultimate analysis, whatever method is adopted its success depends on the moral standards of the members constituting the selection committee and their sense of objectivity and devotion to duty. This criticism is more a reflection on the examiners than on the system itself. The scheme of selection, however, perfect it may be on paper may be abused in proactive. That it is capable of abuse is not a ground for quashing it. So long as the order lays down relevant objective criteria and entrusts the business of selection to qualified persons, this Court cannot obviously have any say in the matter.'
87. In LPA 247 2005 it has been brought on record that a close relation of the Chairman of the Commission was also a candidate in the selection. Said candidate was interviewed by the committee headed by Mr. M.S. Khan, Member but she has not been selected. Had there been quid-pro-quo between the members of the Commission in respect to their wards/relations, the relations of Chairman should have been selected by the Committee headed by Mr. M.S. Khan, Member when his ward was interviewed by the committee headed by the Chairman and selected. It has been further stated that sons and daughters of two ex-ministers, namely, Mohd Shaffi Uri and Choudhary Mohd Ramzan could not be selected in the last selection held by the Commission in the year 2001 when these ministers were in position. The composition of the Commission by and large is the same as existed in the year 2001. Based upon these facts, it is submitted that if the Ministers had their influence they were in a better position to ensure selection of their wards in the year 2001 when they were in office and even the relation of the Chairman of the Commission has not been selected which clearly indicate that the selection committees/commission have acted fairly in making selection and no un-due muchless exceptional favour has been bestowed upon the selectees who are relations of the members of the Commission and/ or of the former and present Ministers. In any case the Court has no instrument to measure the thought process of the interviewing body unless some material is brought on record to demonstrate the arbitrary and un-fair action of the interviewing body.
88. It is further stated that these candidates have brilliant academic record and they cannot be put to dis-advantageous position being relations of the members of the Commission or some other persons who are or remained in high position in the Government.
89. It is stated by the Commission in its reply before the writ Court that the separate selection committees were constituted for interviewing the candidates. As far the relatives of the Members of the Commission are concerned a distinct committee headed by the Chairman, Dr. Madan, Member of the Commission and an expert was constituted to interview them. None of the members of this committee had any relations with the candidates so interviewed. Based upon above, it is stated that the allegations of bias against these candidates as also the candidates who happen to be the relations of the present and former Ministers are baseless and there is nothing to establish the bias. This fact is not disputed by the writ petitioners. It is not un-usual that the relations of the Members of the Commission or even of the Ministers and other high-ups in power can be the candidates for selection. Merely because a candidate happened to be a relation of some member of the Commission or of a Minister, his selection cannot be said to be result of influence or favoritism on account of such relation alone. A person may be exceptionally brilliant and meritorious and the relationship cannot be used as an instrument to his dis-advantage. However, what needs to be examined is whether he has been able to exploit his relationship and earned merit because of such relationship in any selection. The only allegation contained in the writ petition is that the wards and relations of Members of the Commission and the former and present Ministers have been selected. We have noticed that some of the wards of ex-ministers who have been selected in the present selection were earlier rejected by the same commission even when those Ministers were in power in the State in the year 2001. Even a relation of Chairman has been rejected in the present selection by a committee headed by Mr. M.S. Khan, Member Commission. Therefore, such allegations alone do not establish any bias or malafides. Learned Single Judge has noticed certain judgments of the Apex Court including Constitution Bench judgment in Ashok Kumar Yadav's case (Supra) which deals with similar situation. In Ashok Kumar Yadav's case, the High Court set aside the selection to the Haryana Administrative Service on similar allegations. However, the Apex Court dis-agreed with the observations of the High Court of Punjab & Haryana.
90. The Apex Court noticed the observations of the Division bench of the High Court, which are quoted here-under:
'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.
That takes us to the next ground of attack which found favour with the Division bench of the High Court, namely, that the participation of Shri R.C. Marya and Shri Raghubar Dayal Gaur in the process of selection introduced a serious infirmity in the selection. It was not disputed and indeed on the record it could not be, that when the close relatives of Shri R.C. Marya and Shri Raghubar Dayal Gaur came up for interview (sic), 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 Gaur obtained 160 marks out of 200 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-on-law of Shri R.C. Marya obtained 130 marks and observed that 'these admitted facts are obviously tell-tale'. The Division Bench went to the length of imputing nepotism and favoritism to the Chairman and members of Haryana Public Service Commission by observing that each member of the Haryana Public Service Commission 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.'
91. After noticing these observations of the High Court, the Apex Court observed-
'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, no interference 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 Gaur and Shri R.C Marya were not possessed of any requisite caliber 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 merit, but as an act of nepotism with a view to unduly favouring them so that they can come within the range of selection, was that out of these three candidates, two were related to Dhri R.C Marya and one was related to Sh Raghubar Dayal Gaur. This interference, we are constrained to observe, was wholly unjustified.'
15. 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 Raghubir 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 in the mind of the candidates that Shri R.C. Marya and Shri Raghbar 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 these 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, Surinder Nath Goyal v. State of Punjab and M. Ariffuddin v. D.D. Chitale. We do not think this argument can be sustained and for reasons which we shall presently state, it is liable to be rejected.'
92. As referred to above we had directed the Public Service Commission to apply amended Rule 51 and find out the merit position of the selectees. In so far as the relations of the members of the Commission and former and present ministers are concerned, even by applying the amended Rule 51 which is not in question before us, only one candidate goes out of selection and 12 out of 13 would still get selected.
93. It is settled law that no amount of suspicion can take the place of proof. The power of judicial review in the matter of selection can definitely be exercised to set aside the selection if it is actuated by established bias and malafides. We have noticed above the observations of the learned Single Judge. There is no findings of bias or malafides said to be established on record. Hence selection should not have been set aside on this count. We have no reason to uphold the view of learned Single Judge.
QUESTION-E
94. Appellants before us have also vehemently urged that the writ petitions filed by the respondents are liable to be dismissed as no appointment has been made consequent upon the selection and no right is vested in the selectees. It is accordingly urged that unless the appointments are made, challenge to selection is not entertainable and writ petitions are not maintainable. Learned Single Judge while dealing with this issue held the writ petitions to be maintainable observing that where the selection is made in violation of fundamental rights or express provisions of a statute unsuccessful candidates cannot be asked to wait for challenging the selection till appointments are made and reliance was placed on Madan Lal's judgment wherein the selection was challenged before the appointments could be made.
95. Admittedly these petitions were filed before the Government could make the appointments. It is settled proposition of law that even selectees can be denied appointment for valid reason. We leave this question open. In any event no writ petition has been filed by any of the candidate who was eligible but did not participate in the selection process and can be said to be aggrieved of the selection. All the writ petitions have been filed by the selectees, who had participated in the selection process and after having remained un-successful challenged the selection. Such candidates have no right to challenge the selection after having participated and taken chance.
96. It has also been urged that so far as the reserved category candidates are concerned their selection cannot be assailed on any count muchless the grounds on which the selection has been set aside.
97. It has been stated that in RBA category 22 vacancies remained un-filled as the candidates could not qualify the minimum criterion. In ALC category also 12 posts remained un-filled due to non-availability of the candidates belonging to the category.
98. In some of the writ petitions, it is alleged that some of the reserved category candidates have obtained category certificate by mis-representation though they did not belong to the said category.
99. Public Service Commission as selection body has to rely upon the certificate as issued by the competent authority. If any of the selectees has procured the category certificate to secure selection by mis-representation of facts or fraudulently, the remedy available to the aggrieved person is to approach the competent authority for cancellation of the certificate in terms of SRO 126 of 1994 and neither the writ Court nor the Letters Patent Bench can go into this question as it would involve investigation of facts and may also require evidence. It is only the competent authority vested with the power to cancel the certificate which is entitled to examine and pass appropriate orders. Since the vacancies in some of the categories noticed above remained un-filled due to non-availability of eligible candidates, the grievance of the writ petitioners in respect to the selection of category candidates is not justified. Learned Single Judge while considering the question of validity of selection of candidates in categories has held that since the entire selection is vitiated no benefit can be given to the category candidates, irrespective of availability of vacancies in the category. We do not agree with the opinion of the learned Single Judge as the questions of bias or malafides or excessive marks in the interviews with respect to category candidates become irrelevant in view of the fact that there were more vacancies in some of the categories, than the eligible candidates who applied for the same. We humbly dis-agree with the findings of the learned Single Judge on this count.
100. In view of the discussions held above in regard to the issues involved in these appeals, We are un-able to persuade ourselves to up-hold the impugned judgment. We allow these appeals, set aside the impugned judgment and dismiss the writ petitions. Consequently the selection of the candidates for the post of Assistant Surgeons made by the J&K; Public Service Commission is up-held.