- (1.) The Petitioner did his B.A. L.L.B. and in pursuance of an advertisement by the Respondent No. 2 for filling vacancies of Munsifs in the State Judicial Service of U.P. appeared in the examination of 1987. He succeeded in the written test and was called for interview. The Petitioner obtained 499 marks in the written test out of 850 marks but was given only 40 marks in the interview and thus his total marks were 539. A list of selected candidates was prepared by the U.P. Public Service Commission and for the last post for which selection was held there were five candidates all having equal number of marks that is 539 whose names and marks in the written and oral tests have been given in para 7 of the writ petition. The Public Service Commission recommended the name of Sanjay Shanker Pandey who had the lowest marks in written test but had highest marks in the oral interview out of these five persons. Budh Ram. who had highest marks in the written test out of these 5 persons was selected in the 1986 examination and he has joined and is working as Munsif. Hence he excluded from the candidates to be considered for the 1987 examination.
(2.) The Petitioner got 499 marks in written test and 40 marks in oral interview, and thus in total he got 539 marks i.e. the same marks as Respondent No. 3. The Petitioner?s contention is that he should have been selected and not Sanjay Shanker Pandey. In this connection Rule 19 of the U.P. Nyayik Sewa Niyamawali, 1951 is relevant which States; the Commission shall prepare a list of candidates, who have taken examination for recruitment to the service in order of their proficiency as disclosed by the aggregate marks finally awarded to each candidate. If two or more candidates obtain equal marks in the aggregate, the Commission shall arrange them in order of merit on the basis of their general suitability for the service. Provided that in making their recommendations, the Commission shall satisfy themselves that the candidate has obtained such an aggregate of marks in the written test that he is qualified by his ability for appointment to the service. A perusal of Rule 19 shows that if two or more candidates obtain equal marks in the aggregate, the Commission has to arrange them in order of merit on the basis of the general suitability for the service Appendix 'E' to the Rules contains Sub-clause (6) which states; (6) Viva Voce--The suitability of the candidate for employment in the Judicial Service will be tested with reference to his record at school, College and University and his personality, address and physique. The questions which may be put to him may be of a general nature and will not necessarily be of an academic or legal nature. Notes, (i) The marks obtained in viva voce will be added to the marks obtained in the written papers and the candidates place will depend on the aggregate of both.
(3.) The contention of the learned Counsel of the Petitioner, Shri Ashok Khare is that in the recent decisions of Hon'ble Supreme Court, the emphasis is on the written test and not on the oral interview. It has been held in these decisions that not more than 15 per cent of the total marks, should be allotted for the interview vide Ashok Kumar Yadav v. State of Haryana, 1987 AIR(SC) 454, Mohinder Sain Garg v. State of Punjab, 1991 1 SCC 662, Vikram Singh v. Subordinate Service Selection Board, 1991 AIR(SC) 1011, Munindra Kumar v. Rajit Goel, 1991 3 SCC 368 and Ashok Alias Somanna Godwa v. State of Karnataka, 1992 1 SCC 28. In all these decisions, it has been emphasised that not more than 15 per cent of the total marks should be given for the oral interview so as to avoid arbitrariness. In the latest case Ashok Alias Somanna Gowda v. State of Karnataka (supra) the allotment of 33.3 per cent of the total marks for the oral interview was held to be excessive and arbitrary by the Supreme Court and the rules were quashed.;