N. C. SHARMA, J. - (1.) THE petitioner passed his degree in Bachelor of Laws in the year 1979, while continuing in service as Private Secretary-cum- Judgment Writer in the Rajasthan High Court. An advertisement dated July 6, 1989 was published by the Rajasthan Public Service Commission, Ajmer (respondent No. 2) for recruitment to 21 posts of Munsif-cum-Judicial Magistrate, First Class in Rajasthan Judicial Service, in 'rajasthan Patrika' dated July 12, 1989. Out of these 21 posts, 11 posts were meant for general category candidates and 10 posts were reserved for candidates belonging to Scheduled Castes and Scheduled Tribes. It was further mentioned that in the event of non availability of suitable candidates belonging to Scheduled castes and Screaduled Tribes, the reserved posts will be filled in from amongst the candidates belonging to general category Recruitment to the Rajasthan Judicial Service is governed by the Rajasthan Judicial Service Rules, 1955 (for short, here in after, the Rules' ). THEse rules provide that a written test should be taken of all the candidate who are found eligible. In the written test, four papers are prescribed, namely- Law Paper-I and law Paper-II, each carrying 100 marks, and Language (i) and Language- (ii), each carrying 50 marks, making the total as 300 marks in all. THE Rules further provide that the Rajasthan Public Service Commission (for short, hereinafter, "the Commission") shall call for interview such of the candidates as have obtained a minimum of 35% marks in each of the Law Paper and 40% marks in the aggregate. THE marks for interview were fixed at 35 only. Persons who obtained 45% marks of the aggregate marks of both written as well as interview were to be eligible for being considered for selection to the post of Munsif-cum-Judicial Magistrate in the Rajasthan Judicial Service.
(2.) THE petitioner appeared in the written examination and obtained 131 marks out of 300 marks which was more than 40%, the minimum percentage of Marks prescribed for calling a candidate for interview, and therefore, the petitioner was called for interview along with 30 other candidates from general category and two candidates from Scheduled Caste category. In the interview, the petitioner obtained 18 marks out of 35 and thus his total marks came to 149 out of total marks of 335, but he was not selected and his name do not find place in the selected list. Only 10 candidates from general category were declared successful and result of one candidate from general category and one candidate of Scheduled Caste was with a held as per orders of this Court in another writ petition. It is against his non- selection to Rajasthan Judicial Service that the present writ petition has been filed by the petitioner challenging the vires of proviso (1) to Rule 19 of the Rules which provides for obtaining 45% marks in aggregate of both written papers and interview marks and further for a direction to the respondents to fill up the remaining 21 posts from amongst the candidates called for interview in November, 1989 ignoring the aforesaid proviso (1) to Rule 19 of the Rules. Along with the writ petition, a stay petition was also filed but no relief was sought against the selected candidates nor their selections had been challenged in the writ petition. Notices were issued to the respondents. Reply has been filed on behalf of the Rajasthan Public Service Commission. The petitioner has traced the history of amendments in Schedule- III of the Rules. Prior to August 4, 1962, there was a provision which provided 900 marks for written examination with the requirement to obtain 40% of the aggregate to qualify the written examination and for interview, 200 marks were prescribed. As per proviso (1) to Rule 19, the candidate was required to obtain 50% marks out of 1100 aggregate marks. By an amendment dated August 4,1962, the written examination was made to carry only 300 marks requiring 40% of the aggregate to be obtained for qualifying the written examination and the interview carried 100 marks with a further requirement that a candidate was required to obtain 45% of the aggregate of 400 marks. After the decision of their Lordships of the Supreme Court in Ashok Kumar Yadav's case, the State of Rajasthan amended the rules from February 22, 1986. After the amendment made on February 22, 1986, the written test carried 300 Marks requiring a candidate to obtain 40% marks of the aggregate besides obtaining 35% marks in each Law Paper. For interview, in place of 100 marks, only 35 marks were provided. But while doing so, the State Government did not amend the proviso (1) to Rule 19 which required a candidate to obtain 45% marks of the aggregate marks of both the written examination and the interview, The resultant position is that now a candidate has to secure minimum marks of 45% of 335 marks (300 marks for written examination + 35 marks for interview) which comes to 150/3/4 (say 151 ). If a candidate fulfils the requirements of obtaining 40% marks out of 300 marks allotted in written examination i. e. if he obtains 120 marks, then in order to be recommended for appointment to the post of Munsif-cum-Judicial Magistrate in the service he has to obtain at least 31 marks in the interview. The petitioner has given a comparative chart showing the role of interview under the rules from time to time. From 1955 to 1962, the role of interview was 97. 5%. During 1962 to 1985, its role was 60% and from 1986 onwards, the role of interview is 89%. The petitioner had obtained 131 marks in written examination as against the minimum requirement of 120 marks and he was awarded 18 marks in interview out of 35 marks, making the total as 149 marks. But he was not selected because he did not obtain the required 45% marks of the aggregate of marks allotted for written examination and interview which come to 150/3/4 (Say 151) marks. The petitioner has alleged that proviso (1) to Rule 19 of the Rules requiring 45% marks of the aggregate marks of both written examination and interview has resulted in enhancing the role of interview to the extent of 89% which is too high and it wholly negatives the importance of objective assessment of the candidate by way of written test. The first proviso to Rule 19 of the Rules is, therefore, wholly arbitrary and unreasonable and violates the provisions of Articles 14 and 16 of the Constitution of India. The result of this proviso was that although the petitioner obtained more than 50% marks in interview, but he could not be selected. The petitioner has submitted that this effect nullified the very purpose and the object of providing that the oral interview should not exceed 12. 2% marks of the written test. It is further said that the Commission has also acted arbitrarily but not sending the 50% additional names of the candidates though it was informed well in time to keep the 50% names reserved for the purpose of recommending to the Government.
(3.) THE Rajasthan Public Service Commission in its reply has submitted that it advertised 21 vacancies for Rajasthan Judicial Service and had received 2320 applications, out of which 1131 candidates appeared in the written examination. Only 33 candidates qualified in the written test and out of them 10 persons were selected in accordance with the Rules. THE result of two candidates has been with-held as per orders of the High Court. It is said that the object of prescribing the percentage of marks to foe obtained in interview and in the aggregate is to select meritorious candidates of the minimum standard which has been fixed looking to the condition and circumstances existing in Rajasthan. THE Rajasthan Judicial Service Rules, 1955 are promulgated by the Governor with the recommendation of the High Court under Article 234 read with 309 of the Constitution. High Court was the parent authority in the case but it has not been impleaded as respondent and hence the writ petition was not main tenable. With regard to the reserved list, it is submitted that if against 21 vacancies originally advertised, 21 candidates did not qualify for selection, then the posts were to be re-advertised. In the present case, there was no occasion to prepare reserved list. Reference may be made to the decision of their Lordships of the Supreme Court in Liladhar Vs. State of Rajasthan and others (1 ). That case dealt with the percentage of marks provided for written examination and interview in Rajasthan Judicial Service Rules an they existed prior to 1986. At that time the Competitive examination consisted of a written examination with two papers in Law carrying 100 marks each and two papers, one in Hindi and other in English, each carrying 50 marks and a viva-voce examination carried 100 marks. Two contentions were advanced before the Supreme Court. The first contention was that the entire selection was vitiated by allocation of 25% of the total marks for the viva-voce examination. It was submitted that the allocation of so high a percentage of marks for the interview test introduced an irredeemable element of arbitrariness so as to offend Articles 14 and 16 of the Constitution. The second contention was that the marks were awarded in the interview test in a single lot instead of sub-dividing and awarding marks separately under various heads for the various matters tested in the interview. His Lordship O. Chinnappa Reddy, J. , speaking of the court, said that the object of any process of selection for entry into public service is to secure the best and the most suitable person for the job, avoiding patronage and favouritism. The written examination assesses the man's intellect and the interview test the man himself and 'the twain shall meet' for a proper selection. If both written examination and interview are to be essential features of proper selection, the question may arise as to the weight to be attached respectively to them. In the case of admission to a college, for instance, where the candidates personality is yet to develop and it is too early to identify the personal qualities for which greater importance may have to be attached in later life, greater weight has perforce to be given to performance in the written examination. The importance to be attached to the interview test must be minimal. That was decided by the Supreme Court in Periakaruppan Vs. State of Tamil Nadu (2), Ajay Hasia Vs. Khalid Mujig Sehravardi (3) and other cases. On the other hand, in case of services to which recruitment has necessarily to be made from persons of mature personality, interview test may be the only way, subject to basic and essential academic and professional requirements being satisfied. There are, of course, many services to which recruitment is made from younger candidate whose personalities are on the threshold of development and who show signs of great promise, and the discerning may, in an interview test, catch a glimpse of the future personality. In the case of such services, where sound selection must confine academic ability with personality promise, some weight has to be given, though not much too great weight to the interview test. There cannot be any rule of thumb regarding the precise weight to be given. It must vary from service to service according to the requirements of the service, the minimum qualifications prescribed, the age group from which the selection is to be made, the body to which the task of holding the interview test is proposed to be entrusted and a host of other factors. It is a matter for determination by experts. It is a matter for research. It is not for courts to pronounce upon it unless exaggerated weight has been given with proven or obvious oblique motives. The selection was not struck down by the Supreme Court on the ground that more than due weightage was given to interview test. It was stated in this connection that if the Governor, in consultation with the High Court and the Public Service Commission of the States makes rules stipulating 75% of the marks for the written examination and 25% of the interview test, on what basis can a court say that 25% for the interview test is on the high side, and more so when the interview test is generally conducted by a body consisting of a Judge of the High Court, the Chairman and a member of the Public Service Commission and a special invitee expert. Thus in Liladhar's case (supra), what was upheld was the prescribing of 100 marks for interview which was 25% of the total aggregate marks. In the present case, the maximum marks for interview were reduced from 100. to 35. The decision in Ashok Kumar Yadav Vs. State of Haryana (4) dealt with recruitment to Haryana Civil Service Executive) and other allied services. In that case, the rules provided that the compulsory subjects of written test were to carry the aggregate of 400 marks and there was also viva-voce examination which were compulsory and which carried 200 marks. There were three optional subjects in written examination which carried 100 marks each. The result was that the written examination carried an aggregate of 700 marks for candidates in general and for ex-servicemen, it carried an aggregate of 400 marks. But in case of both, the viva-voice examination carried 200 marks. No candidate was eligible to appear in viva voce test unless he obtained 45% marks in the aggregate of all subjects including at least 33% marks in Language papers and Hindi Essay. His Lordship Bhagwati, J. referred to the decision in Liladhar's case (supra) and held that so far as ex-service officers were concerned, there could be no doubt that the percentage of marks i. e. 33. 3% to be allocated for the viva-voce test in their case was unduly high and which did suffer-from the vice of arbitrariness. His Lordship examined the effect of allocating 33. 3% marks for interview. It was stated that the minimum marks required to be obtained in the written examination for eligibility for viva voce test was 180 i. e. 45% of 400 marks and as against these minimum 180 marks, the highest marks obtained in the written examination in the category of ex-service officers were 270, the spread of marks in the written examination was thus only 90 marks which worked out a ratio of 22. 2%. But While considering the marks obtained in viva voce test, the lowest marks obtained were 20 while the highest marks secured were 171 and the spread of marks is viva-voce test was thus has wide as 151 in a total of 200 Marks which were no doubt inordinately high percentage of 76. With regard to the marks prescribed in relation to persons belonging to general category, it was held that the viva-voce test in that category also became a depending factor in the process of selection, tilting the scales in favour of one candidate for the other, according to the marks awarded to him in the viva-voce test. His Lordship referred to the percentage of marks allocated for the viva-voce test by the Union Public Service Commission in the cases of selections to the Indian Administrative Service and other allied services which was 12. 2% and that had been found to be fair and just. It was, therefore, directed that in the case of selections to be made to the Haryana Civil Services (Executive Branch) and other allied services, where the competitive examination consists of a written examination followed by a viva voce test, the marks allocated for the viva voce test shall not exceed 12. 2% of the total marks taken into account for the purpose of selection. As a result of the amendment made in the Rajasthan Judicial Service Rules in the year 1986, the marks allocated for viva-voce test have been brought down to minimal and they are now not more than 12. 2%. ;