J. S. VERMA, C. J. - (1.) THE short, though ticklish question for decision in all these cases is whether the essential requirement of obtaining the prescribed minimum qualifying marks separately in the viva voce or personality test for being included in the select list is arbitrary so as to invalidate that provision which results at times in excluding from entry into the State services candidates who would otherwise be even at the top of the select list. It has been candidly stated by the learned Additional Advocate General that this requirement of obtaining minimum qualifying marks in the viva voce test no longer survives even for the corresponding Central Services Examination held by the Union Public Service Commission and the other States except two in addition to Rajasthan. It may be mentioned that such a requirement was initially prescribed by the Union Public Service Commission for the Central Services, but the same no longer exists for several years now. THE report of the Committee on Recruitment policy and Selection Methods headed by Dr. D. S. Kothari, known popularly as the Kothari Report of 1976 also made this recommendation for removing this embargo in case of such candidates of this age group who are subjected to a detailed written test as well. THE question has to be examined in this background.
(2.) AT this stage it would be appropriate to quote the provisions, the validity of which has been challenged in these matters, which were heard together, since they involve the same point for decision even though they relate to different services in the State of Rajasthan. The impugned provisions which are substantially the same and prescribe the aforesaid essential requirement for being selected into any of these services are contained in different set of rules regulating entry to several services in the State. Relevant extract from these rules are as under:- The Rajasthan State & Subordinate Services (Direct Recruitment by Combined Competitive Examinations) Rules, 1962. "15. Recommendations of the Commission.- (1) The Commission shall prepare for each Service, a list of the candidates arranged in order of merit of the candidates as disclosed by the aggregate marks finally awarded to each candidate. If two or more of such candidates obtain equal marks in the aggregate, the Commission shall arrange their names in the order of merit on the basis of their general suitability for the service; Provided that:- (i) the Commission shall not recommend any candidate for the R. A. S. / R. P. S. who has failed to obtain a minimum of 33% marks in the personality and viva voce examination and a minimum of 50% marks in the aggregate. It shall also not recommend any candidate for other services who has failed to obtain a minimum of 45% marks in the aggregate. (ii) - (2) Notwithstanding anything contained in proviso (i), the Commission shall in case of candidates belonging to the Scheduled Castes or Scheduled Tribes recommend the names of such candidates, upto the number of vacancies reserved for them from amongst those who have qualified for interview, even if they fail to obtain the minimum marks in viva voce or the aggregate prescribed under proviso (i) above. " The Rajasthan Administrative Service Rules, 1954: "25. Recommendations of the Commission:- The Commission shall prepare a list of the candidates recommended by them for direct recruitment in order of their proficiency as disclosed by their aggregate marks. If two or more of such candidates obtain equal marks in the aggregate, the Commission shall arrange them in order of merit on the basis of their general suitability for Service. The Commission may award grace marks upto 1 in any one or more of the compulsory papers and upto 3 in the aggregate to enable a candidate to qualify at the examination who might otherwise have not qualified in the said examination: Provided (1) that the Commission shall not recommend any candidate who has failed to obtain a minimum of 33% marks in the personality and viva voce examination and a minimum of 50% marks in the aggregate. (Except that the Commission may recommend candidates belonging to the Scheduled Castes and the Scheduled Tribes, who, though, failing to obtain these minimum marks, are declared by the Commission to be suitable for appointment to the Service with due regard to the maintenance of efficiency of administration.)" The Rajasthan Police Service Rules, 1954: "25. Recommendations of the Commission:- The Commission shall prepare a list of the candidates recommended by them for direct recruitment in order of their proficiency as disclosed by their aggregate marks. If two or more of such candidates obtain equal marks in the aggregate, the Commission shall arrange them in order of merit on the basis of their general suitability for service: The Commission may award grace marks upto 1 in any one or more of the compulsory papers and upto 3 in the aggregate to enable a candidate to qualify at the Examination who might otherwise have not qualified in the said examination: Provided that the Commission shall not recommend any candidate who has failed to obtain a minimum of 33% marks in the personality and viva voce examination and a minimum of 45% marks in the aggregate. Except that the Commission may recommend candidates belonging to the Scheduled Castes and the Scheduled Tribes, who, though, failing to obtain these minimum marks, are declared by the Commission to be suitable for appointment to the Service with due regard to the maintenance of efficiency of administration. The Rajasthan Forest Service Rules. 1962 : " 25. Recommendations of the Commission: (1) The Commission shall prepare a list of the candidates recommended by them for direct recruitment to the Service in order of their proficiency as disclosed by their aggregate marks. If two or more of such candidates obtain equal marks in the aggregate, the Commission shall arrange them in the order of merit on the basis of their general suitability for the Service: Provided that the Commission shall not recommend any candidate who has failed to obtain a minimum of 33% marks in the personality and viva voce examination and a minimum of 50% marks in the aggregate. (2) Notwithstanding anything contained in the proviso the Commission may in case of candidates belonging to the Scheduled Castes or Scheduled Tribes recommend the names of such candidates upto the number of vacancies reserved for them from amongst those who have qualified for interview even if they fail to obtain the minimum marks in the personality and viva voce examination or in the aggregate prescribed under the aforesaid proviso. The Rajasthan Forest Subordinate Service Rules, 1963 : " 20. Direct Recruitment of Ranger Grade-I : (a)to (f ). . . . . . . . . . . . . . . . . . . . . . . . . . . (g) Recommendations of the Commission:- The Commission shall prepare a last of the candidates arranged in order of merit as disclosed by their aggregate marks finally awarded to each candidate. If two or more of such candidates obtain equal marks in the aggregate the Commission shall arrange them in order of merit on the basis of their general suitability for service. The Commission shall recommend to the Chief Conservator upto twice the number of candidates in order of merit as are to be sent for the training. Provided that: (i) The Commission, shall not recommend any candidate who has failed to obtain a minimum of 33% marks in the personality and viva voce examination and minimum of 45% marks in aggregate. (ii) the Commission shall, in the case of candidates belonging to Scheduled Castes or Scheduled Tribes recommend the names of such candidates upto the number of vacancies reserved for them from amongst those who have qualified for interview, even if they fail to obtain the minimum marks in the aggregate. " (emphasis supplied) Very few facts are material for deciding the point in controversy. These matters relate to examinations held in the year 1985 for recruitment to the services governed by the above rules. The examination includes written tests carrying the major percentage of marks out of the aggregate and upto the maximum of 15% of the aggregate for viva voce test. However, in preparation of the select list for these services, candidates who obtained below the prescribed minimum marks in viva voce test have been eliminated even when the total of the marks obtained by them in the written and viva voce tests was sufficiently high to include them in the select list. It has been shown on the baisis of undisputed facts that many candidates had obtained very high percentage of marks in the written test, but have not been selected merely because they failed to obtain the minimum qualifying marks in the viva voce or personality test, whereas several candidates with comparatively much lower marks in the written test have been selected only because of the very high marks obtained by them in the viva voce or personality test. It has also been shown that the aggregate of the marks obtained in the written test and viva voce without applying the embargo of obtaining minimum qualifying marks in the viva voce would also result in not excluding from selection many who have obtained high marks in the written test and consequently would eliminate some who have obtained high marks in the viva voce lest only. There are numerous illustrations given on the basis of actual marks obtained by the candidates appearing at these examinations in the year 1985 to show that such incongruous results follow as a consequence of the essential requirement of obtaining minimum qualifying marks in the viva voce test for being included in the select list. It is, therefore, urged in support of the challange to the constitutional validity of the impugned provision that it is arbitrary, since it leads to much unreasonable results and the working of a provision which leads to such a conse-qnence must be arbitrary. It is now well settled that to avoid an attack on the ground of arbitrariness, the action must be fair and not unreasonable. Arbitrariness is the ante thesis of rule of law and violates the fundamental right of equality enshrined in Article 14 of the Constitution. In support of this argument reliance has also been placed on the Kothari Report and the change effected in the rules for recruitment to the I. A. S. and Allied Services which are undoubtedly more prestigious and to which services the personnel from the corresponding State Services aspire for recruitment by promotion against the promotion quota. It is urged that there is no reason why there should be any greater weight attached to the viva voce or personality test held for selection to these State Services or to make it decisive for selection when it is not so for recruitment to the corresponding higher Central Services. On behalf of the State of Rajasthan as well as the State Public Service Commission the learned Additional Advocate General contended that certain requirements needed in personnel selected for these State Services which have been indicated in the Rules, provide guidelines for the viva voce or personality test and, therefore, the same cannot be called arbitrary. He also argued that a person who had faired extremely well in the written test may not be suitable for one of these State Service if he is not upto the mark in any of these subjects of local importance and, therefore, this essential requirement of obtaining minimum qualifying marks in the viva voce test is quite reasonable for recruitment to the Services. The learned Additional Advocate General in all fairness pointed out to us that deleting this requirement is under serious contemplation for recruitments to be made hereafter. He also pointed out that as a result of several decisions of the Supreme Court the percentage of marks allotted for the viva voce test had been reduced so that it is below 15% of the aggregate, rest being for the written test. According to him, making such a provision requiring the obtaining of minimum qualifying marks in the viva voce test being one of the permissible modes of recruitment, it does not matter the same is not being adopted for recruitment to the Central Services or even by most of the other States. To support his argument of lesser weight age to the viva voca test, he pointed out that for the combined State Service the total marks for the compulsory and optional written test was 1400, while that for viva voce test was only 180, which is less than 15% of the aggregate marks for the whole examination. However the essential requirement for selection is to obtain at least 60 out of 180 marks in the viva voce test for being obtained in the written examination. The other counsel appearing for some of the selected candidates supported the stand taken by the learned Additional Advocate General. The real vice according to the other side is in this requirement of minimum qualifying marks in the viva voce test for being included in the list selected candidates and not in the percentage of marks allotted to the viva voce test out of the total aggregate of marks, It is urged that it is one of the modes of making the viva voce decisive when such a consequence is prohibited by all available modes.
(3.) AS earlier stated, no further facts are necessary for deciding these cases, since these are the only material facts for deciding the real point in controversy. The decision of this point will determine the mode of preparation of the list of selected candidates. At this stage it would be appropriate to refer briefly to the aforesaid Kothari Report. The Committee recommended that no minimum qualifying marks be fixed for the interview test because of the varying teaching standards and other factors such as different spheres from which the candidates were drawn inftuenting the development of their personality upto that age, on that the interview test did not really provide a proper guide of the true worth of all candidates as that stage particularly when they were also subjected to an elaborate written test, (para 3, 43 of the Report ). The candidates competing for the I. A. S. and Allied Services are no longer required to obtain minimum qualifying marks in interview now for several years even though obtaining of minimum qualifying percentage of marks in interview for being selected to any of these Service was an essential requirement earlier. There is no material placed before us by the State Government by the State Public Service Commission to indicate that there is any significant additional ability needed in a candidate for being selected to any of the corresponding State Services in the State of Rajasthan which is not necessary in a corresponding officer of the Central Service also functioning in this very State which can be adjudged only in viva voce test so as to justify this additional requirement for recruitment to the State Service even after it has been dispensed with for the corresponding higher Central Service. It may also be mentioned that candidates ultimately selected to the State Services have to undergo a period of training and training in and particular speciality etc. required of them can be easily imparted as a part of the training programme after having selected the best out of the available material on the same pattern as is adopted for recruiting the best for the Central Services. Several decisions were cited at the Bar from both sides to support the rival contentions. The principles applicable are not disputed and the controversy is only with regard to their application. In our opinion, reference to one decision of the Supreme Court is alone sufficient for our purpose. The decision in Ashok Kumar Yadav vs. State of Haryana (1) by the Supreme Court refers to the earlier decisions on the point while indicating the real test to be applied for determining the permissible weight age to be given to viva voce or personality test. Relevance extracts from this decision which summarise the law on the point and also indicate the true test are as under :- ". . . . . . . . . The contention of the petitioners under this ground of challenge was that in comparison to the marks allocated to the written examination, the proportion of the marks allocated to the viva voce test was excessively high and that introduced an irredeemable element of arbitrariness in the selection process so as to offend Articles 14 and 16 of the Constitution. It is necessary in order to appreciate this contention and to adjudicate upon its validity to consider the relative weight attached by the relevant rules to the written examination and the viva voce test. . . . . . . . . " (Para 22) "this Court speaking through Chinnappa Reddy, J. pointed out in Lila Dhar vs. State of Rajasthan 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. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service So open competitive examination has come to be accepted almost universally as the gateway to public services. But the question is how should the competitive examination be devised?. The competitive examination may be based exclusively or 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. . . . " (Para 23) "glenn Stehl has pointed out in his book on Public Personnel Administration that the viva voce test does suffer from certain disadvantages such as the difficulty of developing a valid and reliable oral test, the difficulty of securing a reviewable record of an oral test and public suspicion of the oral test as a channel for the exertion of political influence and as pointed out by this Court in Ajay Hasia case, also of other corrupt, nepotistic or extraneous considerations, but despite these acknowledged disadvantages, the viva voce test has been used increasingly in the public personnel testing and has become an important instrument whenever tests of personal attributes are considered essential. Glenn Stehl proceeds to add that "no satisfactory written tests have yet been devised for measuring such personnel characteristics as initiative, ingenuity and ability to elicit cooperation, many of which are of prima importance. When properly employed, the oral test today deserves a place in the battery used by the technical examiner". There can therefore be no doubt that the viva voce test performs a very useful function in assessing personal characteristics and traits and in fact, tests the man himself and therefore regarded as an important tool alongwith the written examination. Now if both written examination and viva voce test are accepted as essential features of proper selection in a given case, the question may arise as to the weight to be attached respectively to them. "in the case of admission to a college for instance", as observed by Chinn-appa Reddy J. , in Laladhar case, "where the candidates personality is yet to develop and it is too early to identify the personal qualities for the greater importance may have to be attached in later life, greatest weight has perforce to be given to performance in the written examination," and the importance to be attached to the viva voce test in such a case would, therefore, necessarily be minimal. . But, as pointed out by the Chinnappa Ready J. , "in the 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 academical and professional requirements being satisfied". There may also be services which requirement is made from younger candidates whose personalities are only threshold of development and who show signs of great promise" and in case of such service where sound selection must combine academic ability with personality promise, some weight has to be given to the viva voce test. There can not be any hard and fast rule regarding the precised weight to be given to the viva voce test as against the written examination. It must vary from service to service according to the requirement of the service, the minimum qualification prescribed, the age group from which the selection is to be made, the body to which the task of holding viva voce test is proposed to be entrusted and host of other factors. It is essentially a matter for determination by experts. " (Para 25 ). ". . . . . . 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. . . . " (Para 26) ". . . . . . The viva voce test in the general category, too, would consequently tend to become a determining factor in the process of selection, titling the scales in favour of one candidate or the other according to the marks awarded to him in the viva voce test. This is amply borne out by the observations of the Kothari Committee in the Report made by it in regard to the selections to the Indian Administrative Service and other Allied Services-The competitive examination in the Indian Administrative Service and other Allied Services also consists of a written examination followed by a viva voce test. . . . . . It is significant to note that consequent upon the Kothari Committee Report, the percentage of marks allocated for the viva voce test in the competitive examination for the Indian Administrative Service and other Allied Services was brought down still further to 12. 2. The result is that since the last few years, even for selection of candidates in the Indian. Administrative Service and other Allied Services where the personality of the candidate and his personal characteristics and traits are extremely relevant for the purpose of selection, the marks allocated for the viva voce test constitute only 12 2% of the total marks. . . . . . " (Para 27) ". . . . . . So far as candidates in the general category are concerned we think that it would be prudent and safe to follw the percentage adopted by the Union Public Service Commission in case of selections to the Indian Administrative Service and other Allied Services. The percentage of marks allocated for the viva voce test by the Union Public Service Commission in case of selections to the Indian Administrative Services and other Allied Services is 12. 2, and that has been found to be fair and just, as striking a proper balance between the written examination and the viva voce test. We would therefore direct that hereafter in 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. We would suggest that this percentage should also be adopted by the Public Service Commissions in other States, because it is desirable that there should be uniformity in the selection process throughout the country and the practice followed by the Union Public Service Commission should be taken as a guide for the State Public Service Commissions to adopt and follow. . . . . . " (Para 29) (Emphasis Supplied) ;