Bhagwati Prasad, J.
1. The present writ petitions involve common question of law and facts, therefore, they are being decided by this common judgement. For ready reference the facts as enumerated in Special Civil Application No. 11940 of 2007 in the matter of Varshaben Panchabhai Nakum v. State of Gujarat are taken up.
2. According to the petitioner an advertisement for direct recruitment on the post of Police Sub-Inspector (Unarmed Branch) Class - III was issued. The petitioner applied for the same. The petitioner belongs to Scheduled Caste category. The petitioner has passed Preliminary Examination and appeared in main Written Test and was also called for Physical Test. The petitioner was not called for interview and therefore the petitioner along with other candidates had made representations to the respondent State but the grievances of the petitioner and others was not redressed by the respondent State. Being aggrieved by the action of the respondents, writ petitions were preferred by the petitioner and other candidates.
3. The petitioner has alleged in this petition inter alia that on 28.4.2005 the Gujarat Subordinate Service Selection Board had given an advertisement No. 2 of 2005 for direct recruitment on the post of Police Sub-Inspector (Unarmed Branch) Class-III. The petitioner had applied for the same. The petitioner belongs to Socially and Educationally Backward Class (Female) category. The petitioner had passed Preliminary Examination and had appeared in Main Written Test and was also called for Physical Test. Last phase of recruitment process is to start from 4.5.2007, where the petitioner is not called. Adequate number of reserved candidates are not called for interview. According to the petitioner, for the category to which the petitioner belongs, candidates called for interview, are less than even the number of posts advertised. On 23.4.2007 the petitioner along with other candidates had approached the authorities of the Board and it is learnt that the Board has prepared the list of candidates to be called for interview, based on qualifying marks prescribed which is common for all i.e., unreserved male candidates and even reserved female candidates are treated equally. This, according to the petitioner, is illegal, arbitrary and unconstitutional. Hence this petition.
4. Arguing the petition, the learned Counsel for the petitioner Mr. Paresh Upadhayay submitted as under:
Argument of the learned advocate for the petitioner impugning the selection in the police force is based on the ground that the selections which have taken place in accordance with the order of the Government dated 14.9.2004 wherein it is prescribed that a candidate is to have physical test and the test should consist of the following:
1) The examinations shall be held in two successive stages, namely:
(i) Preliminary examination (Objective Type) for selection of candidates for Main Examination; and
(ii) Main examination for final selection of candidates.
(2) The syllabus for preliminary Examination shall be as specified in Appendix-I, and the syllabus for main examination shall be as specified in Appendix-II.
5. Further explaining the arguments, the learned Counsel for the petitioner submits that in physical test a candidate is required to run 100 metres in 15 seconds. If he does not cover the distance of 100 metres in 15 seconds he should be deemed to have failed in this part of test. Having failed in one test, he should not be considered to have fulfilled physical endurance test because failing in one test tentamounts to failing the entire test. Standards which are prescribed by the Notification are to be attained in its entirety.
6. The learned Counsel for the petitioner further clarified that the minimum qualifying mark of 50 does not mean that a candidate may secure there marks in any of the five items enumerated in this clause. Securing 50 marks in any of the five tests cannot be considered to be one equivalent passing of the entire test.
7. According to the learned Counsel for the petitioner, the ratio laid down by the Hon'ble Supreme Court in the case of Hoshiar Singh v. State of Haryana, Supreme Court decision reported in : (1994)ILLJ562SC , the candidate has to pass endurance test in its entirety. Passing few parts would not be sufficient to give him right and giving a character or colour wherein it can be said that he has passed the physical test.
8. The learned Counsel for the petitioner further submitted that in the term of Annexure-A, advertisement No. 2 of 2005 dated 28.4.2005 issued by the Board requires that 100 metre distance has to be covered in 15 seconds. There may be instances and there are instances where a candidate has not reached 100 metres at all and still he has been declared as passed.
9. The Service Selection Board has given explanation in Annexure-R1 in relation to various points which were raised before it. The relevant portion which related to the physical endurance test is at page 70 (para 4) which is quoted as under:
Those candidates who were not able to complete all the five events in the physical test but had completed only two-three events have been called for interview, whereas the candidates who have successfully completed all the five events were left out.
As clarified herein above, the Board had fixed minimum 35 marks in each of the papers of the main examination (written) as qualifying standard for the purpose of inviting the candidates for interview test, the Examination Rules themselves provide for 50 marks as the minimum qualifying marks for the physical test. As such, it is obvious that the candidates who satisfy the minimum qualifying standard for the main examination (written) as also for the physical test would only be qualified to appear at the interview test.
It can be seen from the item No. 4 below APPENDIX-II of the Examination Rules that the physical test is of 100 marks contains 5 events; at the end of the said item-4, it is mentioned that the minimum qualifying marks to be obtained shall be 50, which means that if a candidate obtains aggregate 50 marks or above from the five events of physical test, he would be said to have attained the qualifying standard for the physical test, regardless of the fact whether he failed to attain the stipulated standard of fitness in all the events or in lesser number of events. Therefore, the point raised here is not in conformity with the provisions of the Rules.
10. The learned Counsel for the petitioner further stressed that the qualifying marks for Scheduled Tribes candidates have been reduced from what it was originally designed. Having done so, the Selection Services Board has taken liberty of prescribing minimum passing marks while that has not been prescribed by the Subordinate Services Selection Board Rules. The Subordinate Services Selection Board while advertising this selection has prescribed minimum passing marks. The Board's Notification dated 14.9.2004 do not incorporate anything like minimum standard of passing marks and written test at all, though the same is prescribed for physical endurance test.
11. The learned Counsel further contended that if the Board was of the opinion that the minimum standards were to be prescribed for selection then it should have been mentioned in the advertisement that they can take recourse to Rule 10 and prescribe minimum standard. Having failed to do so, they have exceeded their powers and such fixation has not been in accordance with the Rules. Even if this is taken for the sake of argument to be a power vested in Board then too it is discriminatory but for Annexure-R2 wherein for Scheduled Tribe candidates it has been held to be less than 35 marks which is the case of general candidates, Scheduled Caste Candidates and Socially and Educationally Backward Class candidates. This discrimination is highlighted by the learned Counsel for the petitioner on the strength of Annexure-R2 wherein number of Scheduled Caste female candidates who were required to be appointed were five but none of the female candidates have been invited for interview, perhaps, none of them qualified according to the standard fixed and the standard fixed was minimum 35 marks. The 35 marks have been reduced in case of Scheduled Tribes and has not been brought down to the level of 25 marks. This should have been done in case of Scheduled Castes and Socially and Educationally Backward Class. If this was done, may be there were eligible candidates available for selection. Thus, the learned Counsel for the petitioner submits that the selection as has been made suffers from the hostile discrimination in one class of reserved category to another class of reserved category and therefore it deserves to be struck down.
12. The learned advocate for the petitioner has placed reliance on the following decisions:
(1) Shri Durgacharan Misra v. State of Orissa and Ors. reported in : [1987]3SCR1097 wherein it is held as under:
Where the Public Service Commission while preparing the select list for the posts of Munsifs prescribed minimum qualifying marks for viva voce test and did not select a candidate for not securing the minimum qualifying marks so prescribed and selected candidates securing less number of aggregate marks in written test and viva voce than the candidate in question, the exclusion was not justified when the rules did not prescribe minimum qualifying marks for viva voce test. The mandate of Rule 18 is that the commission shall add the marks secured at the written test and viva vode test, no matter what those marks at viva voce test, and on the basis of the aggregate marks in both the tests, the names of candidates have to be arranged in order of merit.
(2) Umesh Candra Shukla v. Union of India : AIR1985SC1351
that the Selection Committee had no power to prescribe the minimum marks which a candidate should obtain in the aggregate different from the minimum already prescribed by the Rules in its Appendix. The exclusion of the names of certain candidates, who had not secured 600 marks in the aggregate including marks obtained at the viva voce test from the list prepared under R. 18 of the Rules was not legal.
(3) Praveen Singh v. State of Punjab AIR 2001 SC 152
Paragraph 13 Further, in the event, the interview was the sole criteria and the written test being treated as qualifying test, the Public Service Commission ought to have clearly stated that upon completion of the written elimination test, selection would be made on the basis of the viva voce test only as is available in the decision of Ashok v. State of Karnataka : (1992)ILLJ87SC . Be it noted that there is always a room for suspicion for the common appointments if the oral interview is taken up as the only criteria. Of course, there are posts and posts, where interviews can be a safe method of appointment but to the post of a Block Development Officer or a Panchayat Officer wherein about 4,500 people applied for 40 posts. Interview cannot be said to be a satisfactory method of selection though however it may be a part thereof - in the factual score we have the advantage of having the Rules prescribing the mode and the method of appointments and specific marks are earmarked for written examination of various subjects together with totality of marks for viva voce test. As a matter of fact out of 450 marks only 50 marks have been allotted for interview by the Service Commission itself why these 400 marks allotted for a written examination in four different subjects, if interview was to be the guiding factor; there has been however, no answer to the same excepting that the Court ought not to interfere in the matter of selection process in the absence of mala fides true it is that in the event the selection is tainted with mala fides, it would be a plain exercise of judicial power to set right the wrong but is it also realistic to assume that when the Commission in clear and categorical language recorded that 450 marks would be the total marks for the examination and out of which only 50 marks are earmarked for viva voce test, the Commission desired that these 50 marks would be relevant and crucial and the other 400 marks would be rendered totally, superfluous and of no effect at all. The language used is rather plain and is not capable of the interpretation as is being presented before us during the course of hearing and has been held by the High Court. Reliance on 50 marks only and thereby avoiding the other 400 marks cannot in our view having due regard to the language used, be said to be reasonable or devoid of any arbitrariness.
The action of respondent Commission, thus is wholly unreasonable, unfair and not in accordance with the declared principles. Appointment procedure is evident from the documentary evidence disclosed in the proceedings and the Commission ought to be taken note of written examination results as well. As a matter of fact the High Court while recording its acceptance to the method of selection on the basis of the viva voce test only, was pleased to observe as below:
However, we consider it absolutely imperative to observe that the Government should get the rules examined and make proper amendment so that its intention of making distinction between qualifying test and viva voce test does not remain obscure. We also direct the PPSC to take extra precautions while issuing any future advertisement so that no inconsistency remains between the rules and the contents of the advertisement.
The High Court admittedly therefore found inconsistency and obscurity in the entire process and as a matter of fact, the High Court has suggested incorporation of proper amendments in the rules so as to avoid confusion and obscurity. We are however constrained to note that having come to a finding about the inconsistency and obscurity in the process, the High Court thought it fit to decry the claim of the writ petitioner being the appellant herein on the plea of the employer's right but the documents through which the right flows indicates a contra situation and as such the action suffers from the vice of arbitrariness and unreasonableness warranting intervention of this Court. On the wake of the above, the order of the High Court stands set aside and quashed. Consequently the appointments are also set aside. The Public Service Commission is directed to complete the process of selections in terms of the existing rules so that both the written and the viva voce test be taken into consideration for the purpose of effecting appointments. It is made clear that no further advertisement or examination shall take place but reconsideration of the entire process be effected upon the reliance on the written as well as viva voce test. The process be completed within a period of 3 months from the date thereof. It is further made clear that the appointments if any, already made shall continue, but shall be subject to the further results which may be declared by the Public Service Commission in regard to filling up of the posts of Block Development and Panchayat Officers. The appeal thus stands allowed. There will however be no order as to costs.
13. This Court finds that the decisions relied on by the learned Counsel for the petitioner are not applicable to the facts of the present case. Hence they are not dealt with in details in this judgement.
14. The learned Advocate General Mr. Kamal Trivedi with learned Assistant Government Pleader Ms. Sangeeta Vishen answering the arguments of the learned Counsel for the petitioner submitted that as such the question of hostile discrimination is concerned in relation to the candidates called for interview in relation to SC/ST/SEBC the powers are vested in the Board by said Rule 10 which reads as under:
The candidates who have obtained such minimum qualifying marks as may be fixed by the Board shall be called for an interview test:
Provided that candidates belonging to the Scheduled Caste or Scheduled Tribe or Socially and Educationally Backward Class may be allowed to appear in the main examination (Written test) or as the case may be called for interview test by relaxing the standard in the Preliminary Examination or as the case may be in the Main Examination (Written) if the Board is of the opinion that sufficient number of candidates from these communities are not likely to be available for the Main Examination (Written) or as the case may be for interview test on the basis of the qualifying standard for general category in order to fill up the vacancies reserved for such categories.
15. The learned Advocate General further submitted that when the powers are in the Rule it is presumed that everybody knows that this power is vested with the Board and it is not necessary to incorporate this relaxing powers in the advertisement and having not incorporated the relaxing powers in the advertisement, no violation of law has been done by the Board.
16. The learned Advocate General further emphasised that as per the availability of the candidates as enumerated in paragraph 8 of the reply, namely:
1. General Category 257 candidates
2. Schedule Caste - 40 candidates
3. Schedule Tribe - 14 candidates
4. S.E.B.C. - 161 candidates
5. Military - 1 candidate
in relation to Scheduled Caste there were 40 candidates. Out of that 14 candidates have been called for interview. As regards female candidates, none was there. Therefore, there was no question of relaxing the standard in relation to calling female candidates for interview.
17. As regards Scheduled Tribe there were only 14 candidates against available 27 seats and in relation to Scheduled Tribes when sufficient number of candidates were not available by reducing the level of minimum standard to 25 they could get 47 candidates for 20 positions and one female candidate for 7 position. Had it not been done, there would not have been any candidate required for interview out of Scheduled Tribes. Therefore, the power of relaxing as provided under Rule 10 was exercised by the Board and if statutory power is exercised then it cannot be said that there is discretion perpetrated by the Board, this argument of the learned Counsel for the petitioner must fail.
18. The learned Advocate General has further submitted that the question of awarding of marks as has been adopted by the Committee is not a procedure unknown to law. Such procedures are not required to be made known to the candidates and that has been held by this Court in the case of Anil Kumar Shankarlal Joshi v. State of Gujarat reported in 1991 (2) GLH 633 vide Paragraph No. 14 which is as under:.When the subjects are so varied and when the recruitment is to be made for different posts requiring different qualities, it is difficult to appreciate how norms could have been fixed and circulated in advance to the candidates or to the members. As the GPSC may have to hold an examination for recruitment to different posts at the same time and as the subjects which can be offered by the candidates can be so different, the oral test looking to its object will have to be of general character and it will be very difficult to compartmentalise the same or put it under special heads or sub-heads. Another thing to be noted is that the Rules do not provide for allocation of marks under different heads. The Supreme Court in the case clearly held that it is for the interviewing body to take a 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 occasions. On the other hand the totality of the impression created by the candidate 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 it is proven or obvious that the method of marking was chosen with oblique motive. As stated above, no material has been produced or pointed out by the petitioners to show that thus particular method was adopted by the GPSC with a view to favour certain candidates....
It is, therefore, not possible to agree with the learned Advocates for the petitioners that in not fixing the norms in advance, circulating them amongst the candidates and the members taking the oral test and dividing the marks under different and specific subheads, the GPSC committed any impropriety or acted arbitrarily in holding the oral test.
(2) Madan Lal v. State of J & K and Ors. reported in : [1995]1SCR908 where it is held as under:Rule 10(1)(b) does not provide for any separate assessment of marks for candidates at the viva voce faculty wise, that is on intelligence, general knowledge, etc., listed in the said rule. On the contrary, as per the said rule, while conducting a viva voce the Committee has to keep in view the main object of assessing such candidates in the light of the guidelines given therein. Therefore, the petitioners' contention that the members of the Interview Committee must separately assess and give marks on different listed topics faculty wise as per the said rule, is not acceptable.
19. Armed with this decision the learned Advocate General emphasised that division of the marks was provided by a Committee in a meeting held. It was a specialised body of individuals who were highly placed. A uniform standard was adopted for entire selection. The proceedings have been produced before this Court with additional affidavit at page 113. According to the learned Advocate General they provide for how a candidate is to be awarded marks. The learned Advocate General emphasised that none of the candidates who have been called for interview have failed in any of the events for physical endurance and strongly objected to the argument of the learned Counsel for the petitioner that those who have failed in the physical endurance test and have not qualified in any of the five tests have been called for interview. The learned Advocate General further emphasised that requirement of passing physical endurance test in all the five of its disciplines as has been noticed by the Hon'ble Supreme Court in the case of Hoshiar Singh v. State of Haryana (supra) is not required here in the selection which is the subject matter of these writ petitions because in paragraph 11 of the said judgement the Hon'ble Supreme Court has noticed that requirement of passing the physical test in all the five items mentioned in the advertisement and corrigendum. The selection in Hoshiar Singh matter was in different set of rules than the set of rules which govern the present selection. That being the position, the case of Hoshiar Singh v. State of Haryana (supra) has no application in deciding present controversy. Both the set of rules are not available for comparison but then the Hon'ble Supreme Court has clearly noticed in the judgement in Paragraph 11 that all the disciplines of physical endurance test are required to be passed. That being not the position, then the case has no application as far as the present case is concerned.
20. The learned Counsel for the petitioner has drawn attention of the Court to the information to the candidates at Clauses (1) and (2) which is as under (English translation from Gujarati at page 19) as made by the counsel for the petitioner.
1. Candidate will have to pass in physical endurance test and will have to secure minimum 50 marks to be eligible. The enclosed form shall be required to be produced before the examiner/officer at the time of physical endurance test for the purpose of recording the result.
2. If a candidate in an event fails to meet with the minimum standard in physical endurance test, he shall be ineligible to participate in further events/selection.
21. The translation supplied by the petitioner differs from the translation submitted by the learned Advocate General for Clause (2) which is quoted for ready reference as under:
If a candidate fails to achieve the minimum standard of any of physical endurance test/physical measurement examination, he shall be disqualified to participate in further tests/competition.
22. Having heard the learned Counsel for the parties, two points emerge out for adjudication. One relates to physical endurance test and the other relates to lowering of the standard for reserve category candidates.
23. Having considered the arguments of both the learned Counsel and looking to Annexure-R2, the position emerges out is that for general category candidates, Scheduled Caste, Socially and Educationally Backward Class and Ex-Servicemen standard of minimum qualifying mark was fixed at 35. The petitioner's grievance is not fixing the mark of 35. The petitioner's grievance is that for Scheduled Tribe it has been reduced to 25. What stands out boldly is that there were 27 vacancies which were to be filled in from the Scheduled Tribe male category and 7 for female. If the standard is not lowered down there would not have been sufficient number of candidates available for oral interview because even if after the reduction, ratio of qualified candidates called for interview is 1:1.77 whereas for other categories it is 1:2 and odd. That being the position, fixing of lower minimum marks for Scheduled Tribe has been done to ameliorate the position of Scheduled Caste and this concession was not given in case of Scheduled Tribe candidate, there would not have been any candidate for interview. The argument of the learned Advocate General is that this could be done by the Board in terms of Rules 10 and 16.
24. The above two Rules being available. It cannot be said that at it was de hors the Rules that the standards were lowered by the Board. That being the position it emerges that the jurisdiction exercised by the respondent Board appears to be perfectly in accordance with Rules and the grievance of the petitioner appears to be out of place. No discrimination can be seen.
25. Reasonable classification is available. All other classes have been treated at par and Scheduled Tribe is being given extra concession because candidates available even after the concession do not for the same weightage which is for the other candidates. Therefore, this Court is of the opinion that in fixing the standards, no rationality or illegality has been committed by the respondent State and in that view of the matter, the question of fixing of lower standard for minimum qualifying marks for the Scheduled Tribe candidates is not considered in any way supporting the cause of the petitioner.
26. Now the question which is required to be decided is in relation to the physical endurance test. Physical endurance test as provided in the Rules requires that a candidate has to take up this test and compete in five different disciples. Marks allotted to the tests are 100. Apart from providing maximum marks for the test in the Rules it has been prescribed that qualifying marks are 50. The argument of the learned Counsel is that a candidate who does not qualify the required standards as provided in Clause (4) of Appendix II of the Rules then he should be deemed to have failed. If this argument is accepted as advanced then it would mean that the standards which have been prescribed are absolute. If these absolute standards are required to be attained then the total marks which could be attained at 100. But in the same Rule same Clause it has been provided that minimum qualifying marks to be obtained shall be 50. To obtain these marks there has to be some mechanism evolved. If a mechanism is evolved to award 50 marks same is done in the spirit of the language of the Rule.
27. The Rules provide for fixation of qualifying standards by the Board. If the Board has designed a mechanism wherein on the basis of the performance of a candidate certain marks are allotted then that can be seen to be a method of achieving the object of Clause (4) of Appendix-II of the Rules. In response to the query raised by this Court about physical endurance test, the Board has filed an additional affidavit and in the additional affidavit it has been delineated that marks which have been awarded have been categorised according to a scheme devised by those who were assigned this task. For illustration, 100 meter race was to be performed in 15 seconds according to the Rules. One who was to run 100 metres in 15 seconds or less than that was awarded 10.5 marks and those who ran at lesser time was awarded more marks. But one who has run this distance in about 16 seconds has only been awarded one mark. Thus, the purpose of the Rules wherein maximum marks being placed at 100 and qualifying marks being 50, a rational device has been designed by the Committee. being adopted by the Committee. For illustration the methodology of 100 meter race has been quoted hereinabove such is the case of other disciplines also.
28. The learned Counsel for the petitioner has taken the Court to the form which is required to be produced by a candidate at the time he comes to take the physical endurance test. There are two informations appended to this form which were translated in English.
29. Having differently translated by the petitioner and the respondents, there is no dispute about Clause (1) but there is dispute about Clause (2). Two versions of the informations translated by the petitioner and the respondents of Clause (2) along with common version of Clause (1) is reproduced herein below:
Translation as per the petitioners of instruction Nos. 1 and 2 appended to the call letter
1. Candidate will have to pass in physical endurance test and will have to secure minimum 50 marks to be eligible. The enclosed form shall be required to be produced before the examiner/officer at the time of physical endurance test for the purpose of recording the result.
2. If a candidate in an event fails to meet with the minimum standard in physical endurance test, he shall be ineligible to participate in further events/selection.
Translation as per the State Government of instruction Nos. 1 and 2 referred to above:
1. Candidate will have to pass in physical endurance test and will have to secure minimum 50 marks to be eligible. The enclosed form shall be required to be produced before the examiner/officer at the time of physical endurance test for the purpose of recording the result.
2. If a candidate fails to achieve the minimum standard of any physical endurance test/physical measurement examination, he shall be disqualified to participate in further tests/competition.
30. The difference in translation of Clause (2) lies in the point of view of the parties. According to the petitioner if a candidate in an event fails to meet with the minimum standard in physical endurance test, he shall be ineligible to participate in further events/selection. According to the State, if a candidate fails to achieve the minimum standard of any of physical endurance test/physical measurement examination, he shall be disqualified to participate in further tests/competition. The State has further elaborated Physical Endurance Test by saying that it has to be according to the classification as made by the Committee for award of the marks.
31. After having considered both the points, this Court is of the opinion that obtaining 100 marks out of 100 for physical endurance test if considered imperative then that cannot be said to be harmonious construction of the Rule. If qualifying marks are 50 then there has to be some standards prescribed for awarding marks. The methodology of awarding marks as has been shown by the State and the minutes of the Committee produced here along with the additional affidavit show a rational. This does not in any way shake conscious of the Court whereby any discrimination of rationality or legality can be seen in that. Source of power laying down this is available in Rule 16. If the above interpretation is not taken then to achieve the prescribed minimum qualifying marks to be obtained being 50 in physical endurance test would be difficult. It would become a position which should be hard to clarify. The method adopted did not pose any problem in explaining how a student can achieve 50 marks out of 100 marks in taking up 5 disciplines. If five standards as has been prescribed in Appendix II are taken to be minimum then there is no question of obtaining of 50 marks because no lesser marks can be awarded to any candidate and awarding marks uniformly to all the contestants is a position which is not easy to be achieved otherwise. There no exception can be taken about the action taken by the respondent.
32. In the result, both the points as canvassed by the learned advocate for the petitioner fail. The petitions are meritless. Hence dismissed.
33. In view of the orders passed in the main petition, no order is passed on the Civil Application. It stands disposed of accordingly.