TATIA, J. - (1.) HEARD learned counsel for the parties. Brief facts of the case are that the Rajasthan Public Service Commission Advertised 19 posts of Legal Assistant. It is stated in the advertisement that number of vacancies can be increased or decreased and for that, no further advertisement will be issued. Ultimately, the number of vacancies was increased to 61. As per the procedure, the written tests were held on 5th and 6th December 1998. The petitioner No. 1 Neeraj Kant and petitioner No. 2 Balvinder Singh secured 81 and 82 marks respectively in the written tests. The petitioners were called for interview for personality test by Viva-voce examinations on 29. 4. 1999. In the interview both the petitioners secured 6 marks, whereas minimum marks required for declaring to have passed the selection test were 7. According to petitioners, though the petitioners secured much higher marks in written tests than the marks secured by candidates who were selected in written tests but were declared unselected only on the ground of securing merely one mark less than the minimum marks fixed in interview for personality test by Viva-voce examinations. The requirement of minimum marks in Viva-voce is provided in Rule 23 of the Rajasthan Legal (State and Subordinate) Services Rules, 1981. The petitioners have challenged the Rule 23 of the Rules of 1981, therefore, it will be relevant to quote here, which is as under:- " 23. Viva-voce :- Candidate who obtained such minimum qualifying marks in the written examinations as may be fixed by the Commission in their discretion shall be summoned by them for an interview for a personality test which shall carry "+20" marks. The Commission may in its discretion award grace marks up to one in each paper and up to three in, the aggregate. The Commission may fix minimum qualifying marks in the written examinations for the Scheduled Castes and the Scheduled Tribes candidates lower than what is prescribed for other candidates. The minimum qualifying marks in Viva-Voce shall be 35% for candidates other than those belonging to the Scheduled Castes and the scheduled Tribes and for the Scheduled Castes and the Scheduled Tribes it shall be 25%. The marks so awarded shall be added to the marks obtained in the written test by each candidate. The Scheduled Castes and the Scheduled Tribes candidates shall be paid both ways actual Railway fare of the lowest class by passenger train beyond 80 km in accordance with the orders of the Government to appear at the Viva-Voce. Other candidates shall appear in the Viva-Voce test at their own experience. "
(2.) ACCORDING to the learned counsel for the petitioners, provision like rule 23 of the Rules of 1981 is not there concerning any Subordinate Services government services in Rajasthan, except in Rajasthan Police Subordinate Service Rules 1989. It is also submitted by the learned counsel for petitioners, that in State Services, namely, Rajasthan Administrative Service Rules, 1954, Rajasthan Police Service and Rajasthan Forest Service Rules, such a provision is there. It is also submitted that, the personality test may be appropriate for giving appointment on certain post where the appointee is required to discharge the duties of administrative nature and have to deal with the public where personality, address and physique may have important role to play which may help appointee in discharging the duties of the post whereas the post of Legal Assistant is of such nature where personality test is irrelevant. Legal Assistants are posted in various departments of Government of Rajasthan for looking after the legal work in the particular department and tender advice to the departments in respect of the legal matters coming to it. The work is more or less one in which no direct contact with the public is there and it is entirely table work. Legal Assistant cannot appear in the court of law and their emoluments are more or less equivalent to those of Upper Division Clerks and the personality etc. has no role to play in the duties required to be discharged by Legal Assistants. It is also submitted that prescription of requirement of minimum marks in Viva-voce test makes Viva-voce a determining factor in the selection process. In any case marks obtained in Viva-voce alone cannot be made decisive factor for selection of the candidate. It is also submitted that, by adopting this mode of selection, the persons having inferior knowledge of law are selected and appointed against the persons having better knowledge of law who secured not only higher marks but even highest marks in written examination. It is also stated that existing rule 24 of the Rajasthan Administrative Service Rules, containing requirement of minimum marks in Viva-voce examination had been amended by the State government and requirement of minimum qualifying marks in interview has been done away which shows that even existing rules are being amended to remove requirement of minimum marks in viva- voce exams. Therefore, condition that the candidate must secure minimum 35% marks in the Viva-voce test is totally arbitrary being irrelevant for the post of Legal Assistant. It is also submitted that, even if it is found that condition of Viva-voce test is reasonable, even then condition of keeping minimum marks for Viva-voce for the post of Legal Assistant is discriminatory as it gives decisive power to exclude most meritorious candidate who secured highest marks in the written tests and select a candidate who otherwise would not have been selected looking to his performance in the written tests conducted to judge his knowledge on the subject for which selection is to take place. According to the learned counsel for the petitioners, not only this is discriminatory but the discrimination is based upon the irrelevant consideration because the candidates having better knowledge on the subject are excluded on the basis of securing lesser mark in the Viva-voce which is conducted not to judge the knowledge of the person on the subject but to test the personality which has no relevance with the duties to be discharged by the selected candidates. It was also submitted that fixing the minimum marks for Viva-voce giving power to exclude meritorious candidate itself is sufficient for declaration it being unreasonable, arbitrary and illegal and ultra virus. Learned counsel for the petitioner submitted that validity of rule providing minimum 33% qualifying marks in personality and Viva-voce examination in Rajasthan Forest Service Rules, 1962 was examined by this Court while deciding number of writ petitions common judgment, which is (Jogendra Singh vs. State of Raj. & Anr. (1), and connected matters ). This Court held that no minimum qualifying marks should be prescribed for personality and Viva- voce because effect of said provision is that a candidate who secured highest marks in written exam. can be knocked out by awarding them less than minimum qualifying marks in Viva-voce exam. and candidate who obtained much lower marks in written exam. can be raised to topmost position in merit-list by awarding high marks in Viva-voce exam. and thereby marks in Viva-voce exam. tend to become determining factor in selection process. Learned counsel for the petitioner further submitted that though the decision of this Court referred above stands reversed by the Hon'ble Supreme Court in view of the Supreme Court's decision rendered in the case of Mehmood Alam Tariq and others vs. State of Rajasthan and others and other connected matters (2), but it was because that in those cases the posts under consideration were of such nature where, with the passage of time, selected officers were expected to man increasing responsible position. Learned counsel for the petitioner vehemently submitted that Hon'ble Supreme Court in a case of Mohd. Alam Tariq and others vs. State of Raj. & Ors. though upheld the condition of prescribing 33% as minimum qualifying marks for viva voce but it was due to the nature of the post involved in the selection. The Hon'ble Apex Court observed as under : ". . . . Prescription of minimum qualifying marks for the written examination or the viva-voce or for both, is a well recognized aspect of recruitment procedures and that a prescription of a maximum of 11. 9% of the total marks for the viva-voce examination, with a condition that the candidate must get at least, 33% out of these marks for selection to the three key- services would not violate any constitutional principle or limitation; but on the contrary would, indeed, be a salutary and desirable prescription, particularly having regard to the nature of the services to which recruitment is envisaged. It was submitted that personnel recruited to the higher echelons of Administrative, Police and Forest services with the prospect, with the passage of time, of having to assume higher responsibilities of administration in those three vital departments of Government, should be tried men with dynamism and special attainments of personality. It was pointed out that though the pay-scales of the Accounts Service and Insurance Service are the same as that of the Administrative Service; such a prescription is not attracted to the selection to these other services. " ". . . . There is nothing unreasonable arbitrary in the stipulation that officers to be selected for higher services and who are, with the passage of time, expected to man increasingly responsible positions in the core services such as the administrative Services and the Police Services should be men endowed with personality traits conducive to the levels of performance expected in such services. There are features that, distinguish, for instance, Accounts Service from the Police Service- a distinction that drawn upon and is accentuated by the personal qualities of the officer. Academic excellence is one thing. Ability to deal with the public with tact and imagination is another. Both are necessary for an officer. The does that is demanded may vary according to the nature of the service. Administrative and Police Services constitute the cutting edge of the administrative machinery and the requirement of higher traits of personality is not an unreasonable expectation. "
(3.) ADVANCING argument further, learned counsel for the petitioners submitted that the legal assistant who need not to discharge any administrative functions nor they are required to come in contact with public directly and their work is more or less equivalent to work of U. D. C. only at the time of initial appointment, will acquire experience on the said post for further promotion, therefore, the viva-voce examination which is conducted for judging the personality and physique cannot be criteria, on the basis of which a person having knowledge in the subject can be excluded to accommodate a person having less merit in the subject. Learned counsel for the respondents submitted that the writ petition of the petitioner's deserves to be dismissed only on the ground that the petitioners have not impleaded selected candidates in the writ petition. According to the learned counsel for the respondents, in the arguments which were advanced by the learned counsel for the petitioner's have already been considered by the Hon Apex Court in Mehmood Alalm Tariq's case and once it had been held by the Hon'ble Apex Court that even if it gives a determining power to the selectors to select the candidates on the basis of the marks secured in the interview, it cannot be held that the power is arbitrary or unconstituional, nothing survives for determination by this Court after the said decision of the Apex Court. I considered the rival submissions. It appears that the thrust of the argument of the learned counsel for the petitioner is more towards the challenge to the determining and decisive power given to the interview board, by which a meritorious candidate can be excluded only on the ground of securing less marks than the minimum prescribed marks for interview. The same arguments were also advanced before this court in the case; Jogendra Singh vs. State of Raj. & Anr. (3), and five connected writ petitions, wherein, the petitioners of those writ petitions challenged the prescription of minimum marks of 33% for interview by framing rule in Raj. Forest Service Rules 1962. It will be relevant to mention here that this Court while deciding above a bunch of writ petitions considered various earlier judgments, which were relied upon by the counsels in support of their rival contentions. Judgments which were considered were Ajay Hasia vs. Khalid Mujib (4), Ashok Kumar Yadav vs. State of Haryana and Others (5) and Liladhar vs. State of Rajasthan (6), Dr. Keshav Ram Pal vs. U. P. Higher Education Service Commission, Allahbad and Others (7),and Manjula Devi T. N. vs. State of Karnataka and Others It will worthwhile to quote here the relevant portion from the above judgment (Jogendra Singh vs. State of Raj. & Anr.):- " In cases where candidate's 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 and the importance to be attached to the interview test in such a case would be minimal. In case of Services to which requirement is made from younger candidates whose personalities are on the threshold of development and who show signs of great promise, sound selection must combine academic ability with personality promise and therefore, some weight has to be given to the viva voce test. In cases where written test and viva voce examination are both provided, oral interview test should be resorted to as an additional or supplementary test and it cannot be made the determining factor for the selection process. " And thereafter, allowed the writ petition by holding as under :- " The effect of the said provision in the proviso to sub the rule (1) of Rule 25 is that candidate who has secured the highest marks in the written examination, can be easily knocked out of the race by awarding him less than minimum qualifying marks in the personality and viva voce examination and a candidate who has obtained much lower marks in the written examination, can be raised to the top most position in the merit list by an inordinately high marking in the personality and viva voce examination and thereby the marks in the personality and viva voce examination tend to become the determining factor in the selection process. " and ultimately, this Court declared :- " For the reasons aforesaid, proviso to sub rule (1) of rule 25 of the State Service Rules in so far as it prescribes 33% as minimum marks for qualifying at the personality and viva voce examination suffers from the vice of arbitrariness and violative of provisions of Articles 14 and 16 of the Constitution. " ;