SUPREME COURT CASE ABOUT INTERVIEW MARKS

PETITIONER:
ASHOK KUMAR YADAV AND ORS. ETC. ETC.

Vs.

RESPONDENT:
STATE OF HARYANA AND ORS. ETC. ETC.

DATE OF JUDGMENT10/05/1985

BENCH:
BHAGWATI, P.N.
BENCH:
BHAGWATI, P.N.
CHANDRACHUD, Y.V. ((CJ)
SEN, AMARENDRA NATH (J)
ERADI, V. BALAKRISHNA (J)

CITATION:
 1987 AIR  454  1985 SCR  Supl. (1) 657
 1985 SCC  (4) 417  1985 SCALE  (1)1290
 CITATOR INFO :
 R    1987 SC2267 (14)
 R    1988 SC 162 (11,13)
 D    1988 SC1451 (8)
 R    1988 SC2073 (18)
 R    1991 SC 295 (14)
 F    1991 SC1011 (9,10)
 R    1992 SC  80 (2)


ACT:
     Constitution of India, 1950, Article 316 and 226 Public
Service Commission-Chairman   and  Members-Whether  possess
qualification and  men of integrity and calibre-Whether High
Court has  power to  inquire in such  question-Condemnatory
observations by High Court-No factual basis on pleadings or
evidence-Propriety and validity of.
     Administrative Law-
     Natural Justice-Condemnatory  observations made by High
Court  against Chairman  and Members of  Public  Service

Commission without  their  being  party respondents-Whether
justified.
     Recruitment  to   posts  in   Haryana   Civil   Service
(Executive) &  Allied Services-Selection  by Public  Service
Commission-Some interviewed  candidates closely related  to
Members-Selections-Whether vitiated.
     Viva voce examination-20 candidates  called  for each
post-Whether justified-Allocation  of 33.3% marks in case of
ex-service officers  and 22.2% in case of other candidates-
Whether the  viva voce examination suffers from the vice of
arbitrariness-Guidelines for  fixing  marks  for  viva voce
examination-Indicated.



HEADNOTE:
     Rule  9   clause  (1)   of the  Punjab  Civil  Service
(Executive Branch),  Rules  1930  prescribes  a competitive
examination  for  recruitment  to  posts  in  Haryana  Civil
Service (Executive)  and other allied services.  Regulation
(I)  in  Appendix  (I)  lays down  that  the competitive
examination shall include compulsorily and optional subjects
and that  every candidate shall take the compulsory subjects
and not more than  three of the optional subjects, and that
ex-servicemen  shall  not  be  required to  appear  in the
optional subjects.  As per  Regulation 5,  the  compulsory
subjects carry in the aggregate 400 marks and there is also
viva-voce examination  which is compulsory and which carries
200 marks and each optional subject carries 100 marks. Thus,
the written  examination carries  an aggregate of 700 marks
for candidates in general  and for ex-servicemen it carries
an aggregate  of 400  marks while  in case of both, the viva
voce examination  carries 200  marks. Regulation  3 provides
that no candidate shall  be eligible  to appear in the viva
voce test  unless he  obtains  45  per cent  marks  in the
aggregate of all subjects.
     In a  written examination held by the Haryana  Public
Service Commission  for recruitment  to 61  posts in Haryana
Civil Service  (Executive) and other allied  Services, over
1300 candidates obtained  more than  45%  marks  and thus
qualified
658
for  being   called  for   interview  for   the viva voce
examination. The  Haryana Public  Service Commission invited
all the candidates for the viva  voce examination  and the
interviews lasted  for almost  half a  year. The  number  of
vacancies also rose during the time taken up in the written
examination and the viva voce test and ultimately 119 posts
became available  for being filled and on the basis of total
marks obtained in the written examination  as well a viva-
voce test,  119 candidates  were selected and recommended by
the  Haryana   Public  Service Commission  to  the  State
Government.
     The  respondents-petitioners  had obtained  very high
marks at  the written  examination but owing to rather poor
marks obtained in the viva voce  test, they could not come
within the  first 119  candidates and  were consequently not
selected. They filed several  writ petitions  in  the High
Court of  Punjab and Haryana challenging the validity of the
selection of  the appellants and seeking a writ for quashing
and setting  aside the same. The  State of Haryana, Haryana
Public Service Commission, three  members  of the  Haryana
Public Service Commission and five selected candidates were
respondents  to  the  Writ   Petitions.  The respondents-
petitioners contended  before the  High Court: (1) that the
Chairman  and members of   the  Haryana   Public  Service
Commission were not men  of  high  integrity, calibre and
qualification and  they were appointed solely as a matter of
political patronage  and hence the selections made by them
were invalid; (2) that three of the selected candidates were
related to  two members of the Commission namely, Shri R.C.
Marya and  Shri Raghubar  Dayal Gaur  and though  these two
members did  not  participate  in  the interview  of  their
respective relatives,  they did participate in the interview
of other  candidates and  the tactic adopted by the Chairman
and the members of the Commission was to give high marks to
the relatives and award low marks to the other candidates so
as to ensure the selection of their relatives. This vitiated
the  entire  selection process;  (3)  that  the  number  of
candidates called  for interview  were almost  20 times the
number of vacancies and this not only imposed an intolerable
burden on  the Haryana Public Service Commission but also
widened the  scope for arbitrariness in selection by making
it possible  for the  Haryana Public  Service Commission  to
boost up  or deflate the total marks which might be obtained
by a  candidate. This infirmity had the effect of invaliding
the selection made by Haryana Public Service Commission; (4)
that the  allocation of 200 marks for the viva voce test out
of a total of 900 marks for the generality of students and a
total of  600 marks  for ex  servicemen was  arbitrary and
excessive and  it had  the effect  of distorting  the entire
process of selection and it was accordingly unconstitutional
as  involving denial of   equal  opportunity  in  public
employment;  and  (5)  that  the  viva voce  test  was not
conducted fairly  and honestly and the selections made were
vitiated on  account of nepotism, favouritism and casteism
and also  political  motivation.  The  appellants,  however,
submitted that the challenge  to the validity of selections
was unfounded  on the  grounds; (i) that not only was it not
competent to  the Court on the existing set of pleadings to
examine whether the Chairman  and members  of the  Haryana
Public Service Commission  were  men of  high  integrity,
calibre and  qualification but also there was no material at
all on the basis  of which the Court could possibly come to
the conclusion that they were men lacking integrity, calibre
or qualification;  (ii) that  the  Haryana  public  Service
Commission being  a  constitutional  authority it  was not
necessary for  Sh. R.C.M Arya and Sh. Raghubar Dayal Gaur to
withdraw altogether from
659
the interviews and they  acted correctly in abstaining from
participation when  their relatives  came to be interviewed.
This was  in conformity with the principles of fair play and
did not affect the  validity of  the selections; (iii) that
under Regulation 3 in Appendix I, the Haryana Public Service
Commission was justified in  calling for  interview all the
1300 and  odd candidates  who qualified by getting more than
45% marks;  (iv) that  the allocation  of 200  marks for the
viva voce  test was  made under the  Punjab  Civil  Service
(Executive Branch)  Rules, 1930 and it had stood the test of
time and  could not  possibly be  regarded as  arbitrary  or
excessive; and (v) that the selections were made fairly and
honestly and they were not tainted by nepotism, favouritism,
casteism or  political patronage,  besides there was nothing
to show that any  extraneous considerations  had influenced
the  selection process.  The High  Court  set  aside the
selections made by the Haryana Public Service Commission and
directed the Haryana Public Service Commission and the State
of Haryana  to forthwith declare the result of candidates of
all categories on the basis of  written examination alone,
scrupulously excluding all considerations  of the viva voce
test.  Hence  these  appeals  by  the  appellants,  selected
candidates, State  of  Haryana and  three  members  of the
Haryana Public Service Commission.
     Allowing the appeals, the Court,
^
     HELD :  1. (i) The Division Bench of the High Court was
not justified  in making  condemnatory observations  against
the Chairman  and all  the members  of the  Haryana  Public
Service Commission.   Three  members namely S/Sh. D.R.
Chaudhary, Raghubar Dayal Gaur and R.C. Marya were joined as
respondent Nos. 3, 4 and 5 but the Chairman Shri B.S. Lather
and another  member Shri  Gurmesh Prakash  Bishnoi were not
impleaded in  the writ petitions and  yet the most damaging
observations were  made against them This  was clearly  in
violation of  the principles  of natural  justice. Moreover,
these observations  against the Chairman and members of the
Haryana Public Service Commission  were  made without any
factual basis on the pleadings or the evidence.
  [672 H; 673 A-B]
     (ii) It  is difficult to see how on the basis of a mere
averment in  paragraph 9 of one of the writ petitions, which
averment was  disputed on  behalf of  the  respondents, the
Division Bench of the High Court could possibly come to the
conclusion  that   politics  had  played  a  major  role  in
appointment of the Chairman  and  members  of the  Haryana
Public Service Commission and that they were men lacking in
integrity, calibre  and qualification, particularly when no
such allegation was made  by the  petitioners in any of the
other writ  petitions. Therefore,  the Division Bench of the
High Court  was not  at all  justified in  drawing from the
facts set out in paragraph 9 of Civil writ Petition No. 3344
of 1983 any inference that the  Chairman and members were
totally unfit  to be appointed on the Haryana Public Service
Commission or  that they  were not men of integrity, calibre
and qualification.  However, it may be pointed out that even
if the Chairman and  members of  the Haryana Public Service
Commission were appointed on account of political and caste
considerations, they  could  still  be men  of  character,
integrity and  competence and  the extraneous considerations
which might  have weighed with the appointing authority need
not necessarily reflect upon their competence, character or
fitness. [674 A-C; 675 A-B]
660
     (iii) The High Court  was not justified in undertaking
an inquiry  into  the  question whether  the  Chairman and
members of the Haryana Public Service Commission were men of
integrity, calibre  and qualification or  not.  It  was  a
totally irrelevant  inquiry because  even if  they were men
lacking in  integrity, calibre and qualification,  it would
not  make   their  appointments invalid,  so  long  as the
constitutional and   legal  requirements   in regard  to
appointment were fulfilled. The High Court was also wrong in
going into  the question whether the Chairman and members of
the Haryana  Public Service  Commission were  appointed  on
account of  caste considerations  and political patronage or
were lacking  in integrity,  calibre or qualification, when
the validity of their appointments was not challenged in the
writ petitions nor was any relief claimed for setting aside
their appointments. The validity of their appointments could
not  be  questioned  collaterally   while  considering the
challenge to the selections made by them.
     In the  instant case,  no constitutional  provision was
violated in  making appointments of the Chairman and members
of the Haryana Public Service Commission nor was any legal
provision breached  and the appointments of the Chairman and
members of  the Haryana Public Service Commission were made
in   conformity   with  the constitutional and   legal
requirements. If  that be  so, it  is difficult to see as to
how the appointments of  the Chairman and members  of the
Haryana Public Service Commission  could  be regarded  as
suffering from any infirmity or any selections made by them
could be said to be vitiated, merely on the ground that they
were not,  in the  opinion of the Division Bench of the High
Court, possessed of integrity, calibre or qualifications.
[675 C-D; 676 G-H; 675 H; 676 A-C]
     C. Ranga  Raju v. State of  Andhra  Pradesh  [1981]  3
S.C.R. 474 relied upon.
     2. (i)  There was no material  whatsoever on record to
justify the  observations made by the Division Bench that
high marks  were undeservedly  given to the three candidates
related to  Shri R.C. Marya and Shri Raghubar Dayal Gaur and
low marks  were deliberately  given to the other meritorious
candidates with a view to manipulating the selection of the
former at  the cost  of the  latter. In fact, far from there
being any  material supportive of such observation, there is
one circumstance,  which, completely  militates against the
view taken  by the  Division Bench  and that circumstance is
that the  marks obtained  by the  candidates at the written
examination were not disclosed to the members of the Haryana
Public Service  Commission  who   held   the viva voce
examination. If the members, who interviewed the candidates,
did not know what were the marks obtained by the candidates
at the written examination, it is difficult to see how they
could  have   manipulated  the marks at   the  viva voce
examination with  a view  to pushing up the three candidates
related to  Shri R.C.  Marya and Shri Raghubar Dayal Gaur or
any other  candidates of  their choice so as  to bring them
within the range of selection. [682 C-E]
     2. (ii)  It is  one of  the fundamental  principles  of
jurisprudence that  no man  can be  a judge in his own cause
and that  if there  is a reasonable likelihood of bias it is
'in accordance with natural  justice and  common sense that
the justice  likely to be so biased should be incapacitated
from sitting". The question  is not  whether the  judge  is
actually biased or in fact decides partially, but
661
whether there is  a  real  likelihood of  bias.  What  is
objectionable in  such a  case is  not that  the decision is
actually tainted  with bias  but that  the circumstances are
such as to create  a reasonable apprehension in the mind of
others that  there is  a likelihood  of bias  affecting the
decision. The  basic principle underlying this rule is that
justice must  not only be done but must  also appear to be
done and  this rule has received wide recognition in several
decisions of the Supreme Court. It is also important to note
that this rule is not confined to cases where judicial power
stric to sensu is exercised. It is appropriately extended to
all cases  where an  independent mind  has to  be applied to
arrive at  a fair and just decision between the rival claims
of parties. Justice is not the function of the courts alone;
it is  also the duty of all those who are expected to decide
fairly between contending  parties.  The  strict  standards
applied to  authorities exercising  judicial power are being
increasingly applied  to administrative bodies, for  it  is
vital to  the maintenance  of the  rule of  law in a welfare
state where  the jurisdiction  of administrative  bodies  is
increasing at a rapid pace that the instrumentalities of the
State should  discharge their  functions in  a fair and just
manner. Where  reasonable likelihood  of bias  is alleged on
the ground  of relationship, the question would always be as
to how close is  the degree  of relationship  or  in  other
words, is  the nearness of relationship so great as to give
rise to reasonable apprehension  of bias on the part of the
authority making the selection. [683 E-H; 634 A-B; 685 C-D]
     A.K. Kraipak  v. Union  of India  A.I.R. 1970  S.C. 150
relied upon.
     D.K. Khanna  v. Union  of India  & Ors. [1973] 1 S.L.R.
80: Surinder Nath Goel v. State of Punjab [1973] 1 Ser. L.R.
690 and M. Ariffudin  v. D.D. Chitaley & Ors. [1973] 2 Ser.
L.R. 119 referred to.
     2.(iii) The principle which requires that a member of a
selection Committee  whose close  relative is  appearing for
selection should decline to become a member of the selection
committee or  withdraw from  it leaving it to the appointing
authority to  nominate another person in his place, need not
be applied  in case  of a  constitutional Authority like the
Public Service Commission, whether  Central or State. If a
member of  a  Public  Service  Commission  was to  withdraw
altogether from the selection process on the ground that a
close relative of his is appearing for selection, no other
person save a member can be substituted in his place. And it
may sometimes  happen that  no other  member is available to
take the  place of  such member and the  functioning of the
Public Service Commission may be affected.  When two more
members of  a Public  Service Commission  are holding a viva
voce examination,  they are  functioning not  as individuals
but as the Public Service Commission. Of course, it must be
made clear  that when  a close relative of  a member  of  a
Public Service Commission is  appearing for interview, such
member must  withdraw from participation in the interview of
that candidate and must  not take part in any discussion in
regard to the merits of that candidate and even the marks or
credits given  to that candidate should not be disclosed to
him.
  [686 G-H;687 A-B]
     Javid Rasool  Bhat v.  State of  J.& K. [1984] 2 S.C.C.
632 relied upon.
     In the  instant case,  both the  members of the Haryana
Public Service Commission retired  from the  room when the
inter views of their respective
662
relatives were held. Moreover, neither of them took any part
in any discussion in  regard to the merits of his relatives
nor is there anything to show that the  marks or  credits
obtained by  their respective  relatives at  the  interviews
were disclosed to them. There was no infirmity attaching to
the selections made by the Haryana Public Service Commission
on  the ground that, though their  close  relative were
appearing for  the interview,  Shri Raghubar  Dayal Gaur and
Shri R.C.  Marya did not withdraw completely from the entire
selection process. [688 C-D;]
     4.(i) The Haryana Public Service Commission  was not
right  in  calling  for interview  all the  1300  and odd
candidates who secured 45  per cent  or more  marks in the
written examination. It  is clear  on  a  plain  natural
construction of Regulation 3  that what  it  prescribes  is
merely a  minimum qualification for eligibility to appear at
the viva  voce test.  Every candidate  to  be  eligible for
appearing at  the viva voce test must obtain at least 45 per
cent marks  in the aggregate in the written examination. But
obtaining of  minimum, 45  per cent marks does not by itself
entitle a  candidate to insist that he should be called for
the viva  voce test.  There is no obligation on the Haryana
public Service Commission to call for the viva voce test all
candidates who satisfy the minimum eligibility requirement.
Where there  is a  composite test  consisting of  a  written
examination followed  by a  viva voce  test, the  number  of
candidates to  be called for interview in order of the marks
obtained in the written examination, should not exceed twice
or at  the highest,  thrice the number of  vacancies to  be
filled.
     In the   instant case,  the  Haryana  Public  Service
Commission could  not be said to be actuated by any malafide
or oblique  motive in  calling for  interview all  the 1300
candidates because  it was common ground between the parties
that this  was the  practice which  was being consistently
followed by  the Haryana  Public Service Commission over the
years  and   what  was done  in   this  case was  nothing
exceptional. Therefore the selections made by the Haryana
Public Service Commission could  not be said to be vitiated
merely on  the ground that  as  many as  1300  and more
candidates representing more than  20 times  the number  of
available vacancies  were called for interview, though it is
not right course to follow and not more than twice or at the
highest thrice, the number  of candidates  should have been
called for interview. [690 B; E-F, 691 G-H; 629 A-D]
     "Theory & Practice of  Modern  Government"  by  Harman
Finer and  Kothari Committee's Report on  the Recruitment
Policy &  Selection Methods  for Civil Services Examination
referred to
     4.(ii) It is true that some  of the  petitioners did
quite well  in the  written examination but faired badly in
the viva voce test and in fact their performance at the viva
voce test  appeared to have deteriorated  in comparison  to
their performance in the year 1977-78. But, the Court cannot
sit in judgment over  the  marks  awarded  by interviewing
bodies unless  it is  proved or obvious that the marking is
plainly and  indubitably arbitrary  or affected by  oblique
motives. It  is only if the assessment is patently arbitrary
or the risk of arbitrariness is  so high that a reasonable
person would  regard arbitrariness  as inevitable,  that the
assessment of marks at the viva voce test may be regarded as
suffering from the vice  of arbitrariness. [692 F-G; 693 B-
C;]
663
     In the  instant case, apart from only three candidates,
namely, Trilok Nath Sharma, Shakuntala Rani and Balbir Singh
one of whom belonged to the general category and was related
to  Shri   Raghubar  Dayal  Gaur  and  the  other  two were
candidates for the seats  reserved for scheduled Castes and
were  related  to  Shri R.C.  Marya,  there  was  no  other
candidate in whom the Chair man or any member of the Haryana
Public Service Commission was interested,  so that  there
could be  any motive  for manipulation of the marks at the
viva  voce   examination.  There   were of  course  general
allegations of casteism made  against the  Chairman and the
members of  the Haryana Public Service Commission but these
allegations were not substantiated by producing any reliable
material before the Court.  The Chairman and members of the
Haryana Public Service  Commission  in  fact belonged  to
different castes  and it  was not as if any particular caste
was predominant amongst the  Chairman and  members  of the
Haryana Public Service Commission  so as  even to  remotely
justify an   inference that  the  marks  might  have been
manipulated  to  favour  the candidates  of that  caste.
Therefore, the Division Bench was not right in striking down
the selections made by the Haryana Public Service Commission
on the ground that they were vitiated by arbitrariness or by
reasonable likelihood of bias. [693 D-G]
     5.(i)  While   a  written examination  assesses the
candidate's knowledge  and intellectual ability, a viva voce
test seeks  to assess a candidate's overall intellectual and
personal qualities.  While a written examination has certain
distinct advantages  over the  viva voce test, there are yet
no  written   tests  which   can  evaluate   a candidate's
initiative,  alertness,  resourcefulness,   dependableness,
cooperativeness,   capacity    for   clear    and    logical
presentation, effectiveness  in discussion, effectiveness in
meeting and  dealing with  others,  adaptability,  judgment,
ability to  make decision, ability to lead, intellectual and
moral integrity.  Some of  these qualities can be evaluated,
perhaps with some degree of error, by a viva voce test, much
depending on  the constitution of the interview Board. There
can therefore be no doubt that the viva voce test performs a
very useful  function in assessing personnel characteristics
and traits  and in  fact,  tests  the  man  himself  and  is
therefore regarded  as an  important  tool  along  with the
written examination. [695 F-G; 696 C-D]
     5.(ii) There cannot be any hard and fast rule regarding
the precise  weight to be given  to the  viva voce  test as
against the  written examination.  It must very 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 the viva voce test is proposed to be entrusted and a
host of other factors. It  is essentially  a matter for
determination by  experts. The Court does  not possess the
necessary equipment  and it would not be right for the Court
to pronounce  upon it, unless to use the words of Chinnappa
Reddy, J.  in Liladhar's  case "exaggerated  weight has been
given with  proven or  obvious oblique motives." [696 H; 697
A-B]
     5. (iii)  The allocation  of as  high a  percentage  of
marks as 33.3% in case of ex-service officers and 22-2% test
in case of other  candidates for  the viva voce renders the
selection process arbitrary and it does suffer from the vice
of arbitrariness.[697 C-D]
     Kothari Committee's  Report on the Recruitment Policy &
Selection Methods  for the Civil Services Examination relied
upon
664
     In the  instant case,  the candidates  selected by the
Haryana Public  Service    Commission have  already been
appointed to  various posts  and have  been working on these
posts since  the last  about two  years. Moreover the Punjab
Civil Service  (Executive Branch)  Rules  1930 under  which
33.3% marks  in case  of ex-service officers and 22.2% marks
in case of other  candidates, have  been allocated  for the
viva voce  test have  been in  force for almost 50 years and
everyone  has acted  on  the basis  of  these  rules.  If
selections  made   in  accordance   with  the prescription
contained in  these rules  are now  to be set aside, it will
upset a large number  of appointments already made  on the
basis of such selections and the integrity and efficiency of
the  entire  administrative  machinery would  be  seriously
jeopardised. Therefore this Court  does not  propose to set
aside the  selections made  by the  Haryana  Public  Service
Commission though  they have  been made on the basis of an
unduly high  percentage of marks allocated for the viva voce
test. [700 B-D]
     6. So  far  as  candidates  in  general  category are
concerned, it  would be prudent  and  safe  to follow 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  service 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. This Court 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. The  Court 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 through
out 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.  In
case of ex-service officers, having regard to the fact that
they  would   ordinarily  be   middle  aged   persons with
personalities  fully  developed,  the  percentage  of  marks
allocated for  the  viva  voce test  may  be  25.  Whatever
selections are made by the Haryana Public Service Commission
in the future shall be on the basis that the marks allocated
for the viva voce  test shall not exceed  12.2% in case of
candidates belonging to the general category and 25% in case
of ex-service officers. [700 F-H; 701 A-D]
     7. The  Court directed  that  when selections  to the
Judicial Service  are being made in a State, a sitting Judge
of the High Court  to be  nominated by the Chief Justice of
the State  should be invited to participate in the interview
as an expert who, by reason of the fact that he is a sitting
High Court  Judge, knows  the quality  and character  of the
candidates appearing  for the interview and the advice given
by him should ordinarily  be  accepted,  unless  there are
strong and  cogent reasons for not accepting such advice and
such strong  and cogent reasons must be recorded in writing
by  the  Chairman  and  members  of the  Public  Service
Commission. [702 E-G]
665



JUDGMENT:
     CIVIL APPELLATE  JURISDICTION: Civil Appeal Nos. 10160-
10162 of 1983.
     From the  Judgment and  Order dated  20.10.1983 of the
Punjab and  Haryana High  Court in Writ Petition No. 2495 of
1983.
     P.P.  Rao,  A.  Mariarputham,  K.S.  Kendriya  and  R.
Venkatarumani for the Appellants in C.A. No. 10160 of 1983.
     G.L. Sanghi,  S.K. Mehta, P.N. Puri, M.K. Dua and A.K.
Vachar for the Appellants in C.A. No. 10161 of 1983.
     A.K. Ganguli  for the  Appellants in  C.A. No. 10162 of
1983.
     M.K. Ramamurthi, Mahabir Singh, S. Srinivasan and Vijay
Hansaria for the Respondents Nos. 6 & 7 in C.A. No. 10160 of
1983.
     R.K. Garg, Mahabir  Singh,  S.  Srinivasan  and  Vijay
Hansaria for  the Respondents  Nos. 1, 2 and 16 in C.A. No.
10161 and Respondents Nos. 8 & 9 in C.A. No. 10162 of 1983.
     The Judgment of the Court was delivered by
     BHAGWATI, J.   These  appeals  by special  leave are
directed against  a judgment  of the  Division Bench  of the
Punjab &  Haryana High Court  quashing and  setting  aside
certain selections  made  by  the  Haryana  Public  Service
Commission to  the Haryana  Civil  Service  (Executive) and
other allied  services. The  judgment in  part proceeds  on
surmises and  conjectures and  has made certain uncharitable
observations against the Chairman and Members of the Haryana
Public Service Commission without  any warrant and hence it
is necessary to set out the facts giving rise to the appeals
in some detail.
     Sometime in  October 1980 the Haryana  Public  Service
Commission invited  applications for recruitment to 61 posts
in  Haryana  Civil  Service  (Executive)  and  other  allied
Services. The  procedure for recruitment was governed by the
Punjab Civil  Service  (Executive  Branch)  Rules,  1930  as
applicable in  the State  of Haryana.  Rule 9  clause (1) of
these Rules provided that a competitive examination shall be
held at any place  in Haryana in each year in or about the
month of January for the purpose of selection by competition
of  as many  candidates  for the  Haryana  Civil  Service
(Executive), and  others allied services as the Governor of
Haryana may determine and
666
such competitive  examination shall  be held  in  accordance
with the  Regulations contained in Appendix I to the Rules.
Rule 10 laid down  the conditions for eligibility to appear
at the competitive examination but we are not concerned with
these conditions  of eligibility  in  the  present  appeals.
Regulation I  in Appendix  I provided  that the competitive
examination shall  include compulsory  and optional subjects
and every  candidate shall  take all the compulsory subjects
and not more than  three of the optional subjects, provided
that ex-serviceman  shall not  be required  to appear in the
optional subjects.  The compulsory subjects included English
Essay, Hindi  Essay and General knowledge  carrying in the
aggregate 400 marks and there was also viva-voce examination
which was  compulsory and  which carried  200 marks and each
optional subject  carried 100  marks. Vide Regulation 5. 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 while in
case of both, the  viva voce examination carried 200 marks.
Some argument  has turned  on  the  true  interpretation  of
Regulation 3  and hence it would be desirable to set it out
in extenso. It read as follows:
 "3. No  candidate shall  be eligible to appear in
     the viva  voce test unless he obtains 45 per cent marks
     in the  aggregate of all subjects including at least 33
     per cent  marks in each of the language papers in Hindi
     (in Devnagri  Script) and Hindi Essay provided that if
     at any examination a sufficient number of candidates do
     not obtain 45 per cent marks  in the  aggregate the
     Commission may   at  their   discretion lower this
     percentage to  not below  40 per  cent for the language
     papers remaining unchanged."
It appears  that in  response to the advertisement issued by
the Haryana Public Service Commission, about 6000 candidates
applied for   recruitment  and  appeared  at the  written
examination held  by the  Haryana Public Service Commission.
Out of about 6000  candidates who  appeared for the written
examination, over  1300 obtained more than 45 per cent marks
and thus  qualified for being called  for interview for the
viva voce examination. The Haryana Public Service Commission
invited all  the 1300  and more candidates who qualified for
the viva  voce test, for interview and the interviews lasted
for almost  half a  year. It  seems that  though  originally
applications were  invited for recruitment to 61 posts, the
number of vacancies rose
667
during the  time taken up in the written examination and the
viva voce  test and  test and  ultimately 119  posts  became
available for  being filled  and on the basis of total marks
obtained in  the written  examination as  well as  viva-voce
test, 119  candidates were  selected and  recommended by the
Haryana Public Service Commission  to the State Government.
It seems  that there  were some candidates who had obtained
very high  marks at  the written  examination but  owing  to
rather poor  marks obtained  by them  in the viva voce test,
they could not come within the first 119 candidates and they
were consequently  not selected.  They were aggrieved by the
selections made by the Haryana Public Service Commission and
three out  of them  accordingly filed Civil writ No. 2495 of
1983 in the High Court of Punjab and Haryana challenging the
validity of the selections and seeking writ for quashing and
setting aside  the same.  They also  claimed that  the marks
given in the viva voce test should be ignored and selections
should be  made only  on the  basis of the marks obtained by
the candidates at the written examination and they contended
that if that was done, they would be within first 119 to be
selected by  the Haryana  Public  Service  Commission. Some
other candidates  who did  not figure  in the  list  of 119
selected candidates  also filed Civil Writ  Petition Nos.
2317, 3344,  3345, 3434,  3457, 3435 and 3719 of 1983 in the
High Court of Punjab and Haryana challenging the validity of
the  selections  on  substantially  the  same grounds and
claiming substantially the same  reliefs as the petitioners
in Civil  Writ Petition 2495 of  1983. The State of Haryana
was joined  as 1st  respondent, the  Haryana Public  Service
Commission as  2nd respondent  and three  out  of  the five
members of   the  Haryana  Public  Service  Commission,  as
respondents Nos.  3  to 5  in these  writ  petitions. The
Chairman and  one other member of  Haryana  Public  Service
Commission,  namely,  Shri  B.S.  Lather  and  Shri  Gurmesh
Prakash Bishnoi were however not impleaded as respondents in
the writ petitions. None of the 119 selected candidates were
also joined  as respondents  in the writ petitions. Five our
of the 119 selected  candidates thereupon applied for being
joined as  respondents to  these writ petitions and on their
application, they  were added  as respondent Nos. 6 to 10 in
the writ petitions. This was broadly the array of parties in
the writ petitions.
     Since all the writ  petitions raised substantially the
same issues  and the  pleadings in  the writ  petitions also
followed substantially the same pattern, one writ petition,
namely, Civil  Writ Petition 2495 of 1983 was treated as the
main writ petition and the principal arguments were advanced
in that writ petition, It would therefore be
668
convenient to refer only to Civil Writ Petition 2495 of 1983
and trace  the course  followed by  it in  the High  Court
because whatever  we say  in regard  to this  writ  petition
would apply  equally to the other writ petitions. So far as
Civil Writ Petition No. 2495 of 1983 is concerned, the State
of Haryana  filed its counter affidavit in reply to the writ
petition  and so  also  did  the  Haryana  Public  Service
Commission. The five selected candidates who were impleaded
as respondents Nos.  6 to  10 also  filed  their  counter
affidavit joining  issue with  the petitioners. We  do not
propose to  set out here at this stage the averments made in
the writ  petition or  the answer to those averments made on
behalf of the respondents, because we shall have to refer to
them in some detail when we deal with the arguments advanced
on behalf  of the  parties. Suffice  it to  state  that the
avernments made in the writ petition and the answer sought
to be  given on behalf of  the respondents raised issues of
considerable  importance  affecting  not  only the  Haryana
Public Service Commission but also all  other State Public
Service Commissions and calling for formulation of principle
and norms  which  should  guide all  State  Public  Service
Commissions in the discharge  of their functions.  We may
briefly set  out  the grounds on  which  the petitioners
challenged the validity  of  the  selections  made  by the
Haryana Public Service Commission.
     There were several grounds on which the validity of the
selections made by the Haryana Public Service Commission was
assailed on  behalf of the petitioners and a declaration was
sought that  they were entitled to  be selected  as falling
within the  first 119  candidates. The first ground was that
the Chairman  and members  of  the  Haryana  Public  Service
Commission were not men  of  high  integrity, calibre and
qualification and  they were appointed solely as a matter of
political patronage  and hence the selections made by them
were invalid.  Secondly, it  was  urged on  behalf  of the
petitioners that  two of  the selected candidates,  namely,
Mrs. Shakuntala Rani and Balbir Singh were related to one of
the members of the Haryana Public Service Commission namely,
Sh. R.C.  Marya, while the third  selected candidate namely
Trilok Nath Sharma was related to another member namely, Sh.
Raghubar Dayal Gaur and  though these two members  did not
participate in the interview  of their respective relatives
they did  participate in  the interview of other candidates
and the tactics adopted  by the Chairman and the members of
the Commission was to give high marks to the relatives and
award low  marks to the other candidates so as to ensure the
selection of their relatives. This, according to
669
petitioners, vitiated the entire selection process. Thirdly,
contended the  petitioners, it was  contrary  to  the well
settled practice  followed  by the  Union  Public  Service
Commission and other  selecting  authorities  to  call for
interview as  many as 1300 candidates even though the number
of vacancies  required to  be filled  in was  only 119. The
number of  candidates called  for interview  was  almost  20
times the  number of  vacancies and this not only imposed an
intolerable burden  on the Haryana Public Service Commission
but also widened the scope for arbitrariness in selection by
making it possible for the Haryana Public Service Commission
to boost  up or deflate the  total  marks  which  might  be
obtained by a candidate. The argument of the petitioners was
that the  number of  candidates to  be called  for interview
should not exceed twice or at the highest, thrice the number
of vacancies because otherwise the objective test of written
examination would  be considerably diluted by the subjective
assessment made in the vive voce  test and  there would be
considerable scope  for arbitrariness in  the process  of
selection. This infirmity, submitted  the petitioners, had
the effect  of invaliding the selections made by the Haryana
Public Service Commission. The fourth contention  urged on
behalf of  the petitioners  was that  the allocation  of 200
marks for the viva voce test out of a total of 900 marks for
the generality of students and a total of 600 marks for ex-
servicemen, was arbitrary and excessive  and it  had the
effect of  distorting the  entire process  of  selection  by
introducting in a preponderant measure subjective  element
which could facilitate arbitrariness and manipulation and it
was accordingly unconstitutional  as  involving  denial  of
equal opportunity  in  public  employment.  Lastly,  it was
contended on  behalf of the petitioners  that the viva voce
test  was   not conducted   fairly  and  honestly  and the
selections  made  were vitiated  on  account  of  nepotism,
favouritism and casteism  and also  political motivation.
These were  broadly the grounds of  attack levelled against
the validity  of the  selections made  by the Haryana Public
Service Commission.
     These ground of challenge were sought to be repelled on
behalf of the respondents and it was contended that not only
was it not competent  to the  court on the existing set of
pleadings to examine whether the Chairman and members of the
Haryana Public  Service  Commission were  men   of high
integrity, calibre  and qualification  but also there was no
material at  all on  the basis of  which  the Court  could
possibly come  to the  conclusion that they were men lacking
in integrity, calibre or qualification. It was also urged on
behalf of  the respondents  that the  Haryana Public Service
Commission being
670
a constitutional authority it was not necessary for Sh. R.C.
Marya and  Sh. Raghubar Dayal Gaur  to withdraw  altogether
from the  interviews and  they acted correctly in abstaining
from  participation   when  their   relatives  came   to  be
interviewed. This  was according  to  the  respondents,  in
conformity with the principles of fair  play and  did not
affect the  validity of the selections. The respondents also
contended that under  Regulation  3  in  Appendix  I  every
candidate who  obtained 45  per cent  and more marks in the
written examination  was eligible to be called for interview
and the Haryana Public Service  Commission  was  therefore
justified in  calling for  interview all  the 1300  and odd
candidates, who qualified by  getting more than 45 per cent
marks and  in fact  it would  have been a denial  of  equal
opportunity in public employment  if some  of them  had not
been called  despited having  qualified for  the  viva voce
test. So  far as  the allocation  of 200  marks for the viva
voce  test   is concerned,   it  was  contended  that this
allocation of  200 marks  for the  viva voce  test was made
under the Punjab Civil Service (Executive Branch) Rules 1930
which had  been in  force since over 50 years and no one had
raised any objection to it during this long period of half a
century and  it had  stood the test of time and  could not
possibly  be   regarded as   arbitrary or  excessive. The
allegation that the selections were not  made fairly and
honestly and  they were tainted  by  nepotism, favouritism
casteism or  political patronage  was vehemently  denied  on
behalf of  the respondents  and it  was contended that there
was nothing  to show  that any extraneous considerations had
influenced   the    selection process.   The respondents
accordingly submitted  that the challenge to the validity of
the selections was unfounded  and the writ petitions were
liable to be dismissed.
     The writ petitions came to be heard by a Division Bench
of the High Court of Punjab and Haryana. The Division Bench
after hearing  the  parties  at great length delivered  a
judgment on  20th October  1983 allowing the writ petitions.
The Division Bench held that the Chairman and members of the
Haryana Public Service Commission had been appointed purely
on  the  basis of   political  partisanship and   caste
considerations and  that they  did not satisfy the stringent
test  of   being  men of  high   integrity,  calibre and
qualification. The  Division  Bench  actually  went  to the
length of  alleging  corruption against  the  Chairman and
members of   the  Haryana  Public  Service  Commission and
observed that  they were not competent "to validly wield the
golden scale  of  viva voce  test  for entrants  into the
prestigious public  service." This ground alone, accordingly
to the Division Bench, was sufficient to  invalidate the
selections made by
671
the Haryana  Public Service  Commission. The  Division Bench
then proceeded to hold that it was not enough for Sh. R.C.
Marya  and   Sh.  Raghubar   Dayal  Gaur   to  abstain from
participating in  the interview when their relatives came up
for the viva voce test and their presence and participation
at the time  of  interview  of the  other  candidates was
sufficient to  taint the  selection process  with a  serious
infirmity. The Division Bench almost seemed to  suggest,
without there  being the  slightest warrant for it, that "it
was a  familiar and deliberate tactic adopted by the members
of the Commission to  abstain from  participating  in the
interview of  their close  relatives which  in effect made
patent to the remaining members about their deep interest in
them and further that each member of the Commission adjusted
the relatives" of  the other and  awarded  low  marks  in
interview to  other candidates who had secured high marks in
the written  examination in  order to  oust the latter and
bolster up  the former in the merit list. The Division Bench
also condemned out of hand the  practice  adopted  by the
Haryana Public Service Commission  of calling for interview
all the candidates who obtained more than 45% marks in the
written examination  and who thus proved themselves eligible
for the viva voce test. The view taken by the Division Bench
was that the number of candidates to be called for interview
should not exceed twice or at the highest, thrice the number
of vacancies  required to  be filled  up. The Division Bench
also observed  that the allocation of 200 marks for the viva
voce test  was arbitrary  and excessive,  as it introduced a
large amount  of subjective  discretion in  the process  of
selection which subordinated the  objective test of written
examination and this, according  to  the  Division  Bench,
constituted  denial   of   equal   opportunity in   public
employment. The Division Bench also came to the conclusion
that candidates who had  obtained high marks in the written
examination had been depressed by award of low marks in the
viva voce  test and  candidates who  had obtained  low marks
were pulled  up by award of high marks in the viva voce test
and the entire selection process was vitiated by an "obvious
oblique motive" and tainted by nepotism, favouritism, caste
considerations and  political pressures.  The Division Bench
on this view set  aside the  selections made by the Haryana
Public Service Commission and directed the  Haryana Public
Service Commission  and the  State of  Haryana" to forthwith
declare the  result of candidates of  all categories on the
basis of  written examination  alone, scrupulously excluding
all considerations  of the viva voce test. Respondents No. 6
to 10  thereupon preferred  Civil Appeal  No. 10160  of 1983
with special  leave obtained  from this Court and similarly
with special  leave, Civil  Appeal No. 10161  of  1983 was
preferred by
672
the  State   of Haryana  and  the  Haryana  Public  Service
Commission against the judgment of the Division Bench. Since
disparaging observations  were made against the Chairman and
members of  the Haryana Public Service Commission  by the
Division Bench in its judgment, three members of the Haryana
Public Service Commission who were impleaded as respondents
No. 3, 4 and  5 in  the writ  petitions  also applied for
special leave  to appeal  and on  such leave being obtained,
preferred Civil Appeal No.  10161 of  1983. All these three
appeals were heard together since they were directed against
the same  judgment of  the Division  Bench and we proceed to
dispose them of by this common judgment.
     The first question that  arises for  consideration  in
these appeals  is whether  the Division Bench of  the High
Court was  right in  condemning the  Chairman and members of
the Haryana  Public Service  Commission as  men lacking  in
integrity, calibre  and qualification  and alleging  corrupt
motives against them. The  answer must plainly be  in the
negative and  for more than one reason. In the first place,
it  is common ground that  the  Haryana  Public  Service
Commission consisted of 5 members including the Chairman and
all of them participated  in the interviews save and except
Shri. R.C.  Marya, who did not participate in the interview
of his daughter-in-law Shakuntala  Rani and  the brother of
his son-in-law, Balbir Singh  and Shri Raghubar Dayal Gaur
who did not participate  in the interview of the son-in-law
of his sister, Trilok Nath Sharma. The Division Bench of the
High Court cast serious aspersions on all the members of the
Haryana Public Service Commission including the Chairman and
observed that  "in the matter of appointments to the Haryana
Public Service Commission, the actualities  of  work-a-day
politics  have wholly whittled  away the  ideal  and the
purpose" in  which the constitutional institution of Public
Service Commission  was conceived. The Division Bench of the
High  Court   went  to the  length  of  holding  that the
appointments of the Chairman  and the member of the Haryana
Public Service  Commission   were   made   "wholly   caste
considerations and  political affiliations"  and all of them
including the Chairman did not satisfy the stringent test of
"men of high integrity,  calibre and  qualification". These
were  highly   disparaging  observations  made against the
Chairman and member of the Haryana Public Service Commission
and cast serious refection on their character and integrity.
Surprisingly,  these  condemnatory  observations  were made
against the  Chairman and  all the  members of the  Haryana
public Service  Commission  without their  being   party
respondents to the writ  petitions.  Three  members  namely
S/Sh.
673
D. R.  Chaudhary, Raghubar  Dayal Gaur and R. C. Marya were
joined as  respondent Nos.  3, 4 and 5 but the Chairman Shri
B. S. Lather and another member Shri Gurmesh Parkash Bishnoi
were not  impleaded in the writ  petitions and yet the most
damaging observations  were  made  against  them.  This was
clearly in  violation of  the principles of natural justice.
The observations  made against Shri B. S. Lather  and Shri
Gurmesh Prakash Bishnoi cannot therefore be allowed to stand
and if these observations are obliterated from the judgment,
the entire  super-structure of the argument  assailing the
constitution of the Haryana  Public Service Commission as a
whole must collapse.
     Secondly, these  observations against  the Chairman and
members of  the Haryana Public Service Commission were made
without any  factual basis in the pleadings or the evidence.
There were  no averments  made in any of the writ petitions,
save and  except Civil Writ  petition No.  3344  of  1983,
regarding the  Chairman or any of the members of the Haryana
Public Service Commission. It was nowhere alleged in any of
these writ  petitions that  the Chairman  and members of the
Haryana public Service Commission were lacking in integrity,
calibre and qualification or that they were appointed on the
Haryana Public Service Commission purely on account of caste
considerations or  political affiliations  without any merit
or  competence.  The  only   averments in  regard  to the
appointments of the Chairman  and members  of the  Haryana
Public Service Commission were to be found in paragraph 9 of
Civil  Writ  petition  No.  3344  of  1983  where  a  direct
allegation was made that  all the  members of the  Haryana
Public Service  Commission  including  the  Chairman had
political links and backing  and  their  appointments were
"only  due  to political  and caste  considerations". The
petitioners in this writ petition proceeded to point out the
relationship of the Chairman  and members  of the  Haryana
Public Service Commission to one or the other member of the
political  party  ruling  the  State  at  the  date  of the
respective appointments and sought to draw an inference from
such relationship that their appointments were on account of
caste  considerations  and  political  linkages and  merit,
competence and integrity were sacrificed. The relationship
alleged in  paragraph 9 was not  disputed on  behalf of the
respondents but the inference sought to be drawn there from
was stoutly  resisted and it was contended that there was no
material at  all on the basis of which it could be said that
the Chairman  and members  of  the  Haryana  Public  Service
Commission were appointed solely "due to political and caste
considerations" without   taking  into  account   calibre,
competence or
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integrity. In  fact the State of  Haryana  in its  counter
affidavit seriously  disputed that  the Chairman and members
of the Haryana Public Service Commission had any political
affiliations. Now it is difficult to see how on the basis of
a mere averment in paragraph 9 of one of the writ petitions,
which averment was disputed  on behalf of the respondents,
the Division  Bench of the High Court could possibly come to
the conclusion that politics  had played  a major  role  in
appointment of the Chairman  and  members  of the  Haryana
Public Service Commission and that they were men lacking in
integrity, calibre  and qualification, particularly when no
such allegation was made  by the  petitioners in any of the
other writ  petitions. We  do not  think that  the  Division
Bench of the High Court was at all justified in drawing from
the facts  set out in paragraph 9 of Civil Writ petition No.
3344 of 1983 any  inference that  the Chairman and members
were totally  unfit to be appointed  on the  Haryana Public
Service Commission  or that  they were not men of integrity
calibre and  qualification. Merely because Shri B. S. Lather
was the brother of  Shri  Mahinder  Singh  Lather  who was
allegedly influential  with the Government of Haryana when
the Janta  Party was  in power or Shri R. C. Marya was close
to Shri Chand Ram who was a Union Minister for State during
the Janta  regime or  Shri D.  R. Chaudhary was close to Ch.
Devi Lal  former Chief Minister of  Haryana and belonged to
his caste  as well  as to his village or Shri Raghubar Dayal
Gaur was close to and belonged to the caste of Shri Chiranji
Lal Sharma  who was  a Congress Member of Parliament or Shri
Gurmesh Prasad Bishnoi was  close to and belonged the caste
of Shri Bhajan Lal,  present Chief  Minister of Haryana, it
does not  necessarily follow  that they were not  fit to be
appointed but  were appointed  solely on account of personal
relationship and caste considerations. The Division Bench of
the High  Court proceeded solely on surmises and conjectures
and committed  a grievous error in jumping to the conclusion
that  the   Chairman  and  members  of the  Public  Service
Commission  were   lacking   in  integrity,   calibre and
qualification  and  were  appointed  solely  on account  of
extraneous considerations.  It is  a very  serious matter to
cast aspersions on the character, integrity and competence
of men occupying the high office of Chairman and members of
a Public  Service Commission  and we wish the Division Bench
of the High Court had acted with care and circumspection in
making such  imputation against the Chairman and members of
the Haryana  Public Service Commission, when it was not even
specifically alleged  in paragraph  9 of Civil Writ Petition
3344 of 1983 that  the Chairman  and members of the Haryana
Public Service Commission were unfit to hold the office to
which they were appointed or
675
were lacking  in integrity,  character and qualification. We
may point  out that  even if the Chairman and members of the
Haryana Public Service Commission were appointed on account
of political  and caste considerations, they could still be
men  of  character,  integrity  and  competence   and the
extraneous considerations  which might have weighed with the
appointing authority need not necessarily reflect upon their
competence,   character  or   fitness.  The condemnatory
observations made  against the Chairman and  members of the
Haryana Public Service Commission thus not only went beyond
the averments  made in the writ  petitions  but  were also
totally unjustified and unwarranted.
     Thirdly, it  is difficult to see how the Division Bench
of the High Court  could possibly undertake an inquiry into
the question whether the Chairman and members of the Haryana
Public Service Commission were men of integrity, calibre and
qualification or  not. It  was totally irrelevant  inquiry,
because even  if they were men lacking in integrity, calibre
and qualification,  it would  not  make their appointments
invalid,  so   long  as  the constitutional and   legal
requirements  in   regard  to  appointment  were  fulfilled.
Article 316   of  the Constitution  makes  provision for
appointment and term of office of members of a State Public
Service Commission. Clause (1) of this Article provides that
the  Chairman and  members   of  a  State  Public  Service
Commission shall  be appointed by the Governor of the State
and the proviso to that clause enacts that "as nearly as may
be  one  half of  the members  of  every  Public  Service
Commission shall  be persons  who  at  the  dates  of  their
respective appointments have held  office for at least ten
years" under the Government of a State. Clause(2) of Article
316 declares  that  a  member  of  a  State  Public  Service
Commission shall  hold office  for a  term of six years from
the date  on which  he enters  upon his office or  until he
attains the  age of  sixty two years, which ever is earlier.
Article 319  lays down inter alia  that on  ceasing to hold
office, the  Chairman of  State Public Service  Commission
shall  not   be eligible   for any  employment  under the
Government of  India or the Government of a State, save and
except that  of Chairman  or any  other member of the Union
Public Service Commission and similarly, a member of a State
Public Service Commission. These are the only provisions in
the Constitution  bearing on the appointment of Chairman and
members of a State Public Service Commission. Now concededly
none of these constitutional  provisions  was violated  in
making appointments of the
676
Chairman  and members of   the  Haryana   Public  Service
Commission nor was any legal provision  breached  and the
appointments of the Chairman  and members  of the  Haryana
Public Service Commission  were  in  conformity  with the
constitutional and  legal requirements. If that  be so,  it
passes our  comprehension as  to how the appointments of the
Chairman  and members of   the  Haryana   Public  Service
Commission could be regarded as suffering from any infirmity
or any selections made by them could be said to be vitiated,
merely on  the ground  that they were not, in the opinion of
the Division Bench of the High Court possessed of integrity,
calibre or   qualification.  We  may  take  an analogy  to
illustrate the point we are making. Suppose a District Judge
is appointed  by the  Governor of  the State in consultation
with the  High Court  in accordance with the requirements of
Article 233  and the  appropriate rules made in that behalf.
Can a  judgment delivered  by him  be assailed as invalid on
the ground  that he has not the requisite integrity, calibre
or qualification  ? The judgment may  be set aside if it is
wrong but  not because it is given by a Judge who is lacking
in   integrity,  calibre   or qualification.  Similarly,
selections made by the Chairman and members of the Haryana
Public Service Commission may be quashed if they are found
to be vitiated by the influence of extraneous considerations
or are made in breach of  the rules, but they  cannot  be
invalidated merely  by showing in a general sort of way that
they were  not men  possessed of  high integrity, calibre or
qualification.
     Lastly, we do not think that the Division Bench of the
High Court  was justified in going into the question whether
the Chairman  and members  of  the  Haryana  Public  Service
Commission were appointed an account of caste considerations
and  political patronage  or  were  lacking  in  integrity,
calibre or   qualification,  when  the validity  of  their
appointments was  not challenged  in the  writ petitions nor
was any relief claimed for setting aside their appointments.
The validity  of their appointments could not be questioned
collaterally  while   considering  the challenge  to the
selections made by them. This view receives support from the
observations of Chinnappa
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Reddy, J.  speaking on behalf of the Court in C. Ranga Raju
v. State  of Andhra  Pradesh [1981] 3 S.C.R. 474. There, the
learned Judge  pointed out:  "The defective appointment of a
de facto  judge may  be questioned  directly a proceeding to
which he  be a party but  it  cannot  be  permitted  to  be
questioned in  a litigation between two private litigants, a
litigation which  is of no concern  or consequence  to the
judge except  as a  judge. Two litigants  litigating  their
private title  cannot be  permitted to bring in  issue and
litigate upon  the title of a judge to his office. Otherwise
as soon as a judge pronounces a judgment a litigation may be
commenced for  a  declaration  that  the  judgment  is void
because the judge is no judge. A judge's title to his office
cannot be  brought into jeopardy in that fashion. Hence the
rule against  collateral  attack  on  validity of  judicial
appointments."
     We wholly endorse these observations and conclude that
the principle  underlying these observations must be held to
be equally  applicable in  the present case and the title of
the Chairman  and members  of  the  Haryana  Public  Service
Commission cannot  be allowed  to be  placed in jeopardy in
proceeding for challenging the selections made by them. This
ground of attack against the validity of the selections must
therefore be rejected.
     That takes us to the next ground of attack which found
favour with  the Division  Bench of  the High Courts, namely
that the  participation of Shri R.C. Marya and Shri Raghubar
Dayal Guar  in the process of selection introduced a serious
infirmity in  the selections. It was not disputed and indeed
on the record it could not be, than when the close relatives
of Shri R.C. Marya and Shri Raghubar Dayal Guar came up for
interview, but, according to the Division Bench of the High
Court, such  limited withdrawal from participation  was not
enough and  both the  members, said the Division Bench ought
to have withdrawn from the selection process altogether. The
Division Bench of the High Court relied heavily on the fact
that Trilok  Nath Sharma,  who was  the son-in-law  of the
sister of Shri Raghubar Dayal Guar obtained 160 marks out of
300 in the viva voce test while Shakuntala Rani daughter-in-
law of Shri. R.C. Marya obtained 131 marks and Balbir Singh
brother of  the son-in-law  of Shri  R.C. Marya obtained 130
marks and observed that "these
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admitted facts are obviously  telltale". The Division Bench
went to the length  of imputing nepotism and favouritism to
the Chairman  and members  of  the  Haryana  Public  Service
Commission by  observing that  each member  of the  Haryana
Public Service Commissions adjusted  the relatives  of the
others and  awarded low marks in the interview to the other
candidates with a view to ousting the latter and bolstering
up the former in  the merit  list. We are pained to observe
that such  a serious  aspersion should have been cast on the
Chairman  and members of   the  Haryana   Public  Service
Commission  without   any  basis  or  justification.  Merely
because Trilok Nath Sharma  obtained 160  marks, Shakuntala
Rani obtained 131 marks and Balbir Singh obtained 130 marks,
no inference  can necessarily be drawn that these high marks
were given  to them  in viva  voce examination undeservedly
with  a  view to  favouring  them  at the  cost  of more
meritorious candidates. There is nothing to show that these
three candidates who happened to be related to Shri Raghubar
Dayal Guar  and Shri  R.C. Marya  were not  possessed of any
requisite calibre  or competence or their performance at the
viva voce  examination did  not justify the marks awarded to
them. The  only circumstance  on which the  Division  Bench
relied for  raising the inference that such high marks were
given to  these three  candidates, not on merits, but as an
act of nepotism with a view to unduly favouring them so that
they can some within the range of selection, was that out of
these three  candidates, two were related to Shri R.C. Marya
and one was related  to  Shri Raghubar  Dayal Gaur. This
inference,  we are  constrained  to  observe, was  wholly
unjustified. We cannot help  remarking that  the  Division
Bench indulged in surmises  and conjectures in reaching the
conclusion that high marks were given unjustifiably to these
three candidates at the viva voce examination with a view to
pushing them  up and  low marks were deliberately  given to
other more  meritorious candidates  with a  view to  pushing
them down and thus facilitating the selection of these three
candidates who would not  otherwise have  come within the
range of  selection. We fail to appreciate what is the basis
on which  the Division Bench could observe that these three
candidates got high marks at the viva voce examination only
because they  were  elated  to Shri  R.C.  Marya  and Shri
Raghubar Dayal Gaur. Can a relative of a member of a Public
Service Commission,  Central or State, not get high marks at
the viva  voce examination  on his own merit? Must he always
get low marks, so  that if  high marks are awarded to him,
that would  necessarily be  attributed to  his relationship
with the member of the Public Service Commission?
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     The Division  Bench sought to  draw  support  for its
inference from an article written by Shri D.R. Chaudhari, a
member of  the Haryana Public Service Commission,  who  is
arrayed as  respondent No.  3 in  the  writ  petition. This
article was  captioned "Public Service  Commissions  under
Pressures" and was  written  by  Shri D.R.  Chaudhari and
published in  the issue of Tribune  dated 13th March 1981.
Shri D.R.  Chaudhari was  appointed a  member of the Haryana
Public Service Commission on 2nd December 1977. He had been
such member for over three years at the time of writing this
article.
     He pointed out in this article, and we are quoting here
a passage  which  has  been  strongly  relied  upon  by the
Division Bench:
 "With political  morality in our  system  at its
     lowest abb,  the politicians  are always  in a hurry to
     pack the P.S. Cs with such persons who would be pliable
     tools in  the matter  of recruitment.  Academic  worth,
     intellectual calibre,  experience of  men and  matters,
     and integrity are of no relevance. What is important is
     a person's "dependability."
 Narrow  caste,   communal  and   regional   issues
     dominate Indian Politics today and these considerations
     override  questions   of  talent in  the  matter  of
     recruitment.  In  the  process  a member with  little
     intellectual calibre  and less integrity begin to serve
     his own  interests a those of his political benefactor,
     No vender there is  a widespread feeling in the States
     (mercifully, with the U.P.S.C. as a possible exception)
     that every post carries a price tag.
 We have  reached a  state when the composition and
     functioning  of   our  P.S.  Cs  should  be  critically
     evaluated. This  is necessary if the institution has to
     survive as a meaningful body. Its functioning should be
     brought
680
     under public  gaze. At  present  there  is a  halo  of
     secrecy  surrounding  the P.S.C. and  secrecy  always
     breeds corruption. It would  be suicidal to treat the
     P.S.C. as a sacred  cow. There  is nothing more sacred
     than  the public interest  and  the  public  interest
     demands that  the functioning  of the P.S. Cs should be
     widely debated  through the  press and  other forums. I
     invite  my,  colleagues  of  the  P.S.  Cs and  public
     spirited individuals to join the debate."
We may reasonably assume  that a  person who  write such an
article would  never be a party to any manipulations in the
selection of  candidates  nor  would  he  debase  or  demean
himself by  indulging in or even lending his support to, any
acts  of   nepotism  or  favouritism. It  would  be  quite
legitimate to  infer that  if there  had been any attempt to
manipulate the marks at  the viva  voce examination  with a
view to favouring  the undeserving  or  pushing  down the
meritorious,  Shri   D.R.  Chaudhuri  would  have  protested
against such improper and unholy attempt. The very fact that
Shri D.R. Chaudhari not only did not register any dissent in
regard to the marks awarded at the viva voce examination but
actually agreed with the  evaluation made by his colleagues
shows that  there was nothing wrong with the marking nor was
there any  manipulation of  marks  indicating nepotism  or
favouritism. In fact Shri D.R. Chaudhari filed an affidavit
in these  proceedings  where  he  candidly  said  that this
article written by him was based on his direct experience of
working in  the Haryana Public Service Commission  and  he
proceeded to add boldly and courageously:
 "As a member of H.P.S.C., I noticed various forces
     trying to undermine the independent functioning of the
     Commission.  What irked  me  most was  the  political
     interference. An  attempt was  made  to  convert this
     august body  into a  petty government  department where
     politicians' writ could rung large. Besides this, caste
     lobbies and  money bags  were active  to influence its
     decisions at every stage.
 I was in a  state of agony. I decided to take the
     matter to the public through the medium of the press. I
     knew
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     that I  would incur the wrath of the powers that be and
     dismay caste lobbies and money bags.
 I took  a calculated risk and  wrote the  article
     under question.  It did  infuriate the political posses
     as is evident from a news item published in the Tribune
     dated June 25, 1981  (clipping attached). But at the
     same time it served  the purpose I had  in  mind.  It
     started a public debate. It created  a furore. It was
     read and  debated widely. A number  of letters  to the
     Editor appeared  in the Tribune. It also figured in the
     session of the Haryana Vidhan Sabha.
 The  article had  a desired  effect.  Pressures
     ceased. Political operators and other manipulators were
     put on  the alert. As such I did not feel the necessity
     of writing again on  the same issue though I continued
     writing on other matters."
Then speaking  specifically about  the viva voce examination
held by the Haryana Public Service Commission in the present
case, Shri D.R. Chaudhari stated:
 "The interviews  for the recruitment of H.C.S. and
     Allied Services, which is the subject of writ petitions
     in the  Hon'ble Punjab  and Haryana  High Court, were
     conducted about  two years after the publication of the
     article.  No  pressure,  political or  otherwise, was
     exercised on  me, nor  to the  best of my knowledge, on
     any other colleague of  mine in  the commission during
     the course of this recruitment."
     There is no reason why this statement made by Shri D.R.
Chaudhari should  not be  believed. It is indeed surprising
that the  Division Bench  accepted readily  what was said by
Shri D.R.  Chaudhari in the article  written by him on 13th
March, 1981  but for  some inexplicable reason, refused  to
believe the  same Shri D.R. Chaudhari when he stated that
this article  had the  desired effect  and on account of the
exposure made  in  this article,  pressures,  political  or
otherwise, ceased  so far  as the functioning of the Haryana
Public
682
Service Commission was concerned and in awarding of marks at
the  viva   voce  examination, no  pressure,  political  or
otherwise, was exercised on  Shri D.R. Chaudhari nor to the
best of his knowledge, on any of his other colleagues. We
accept what  has been  stated by  Shri D.R. Chaudhari in his
affidavit and  disapprove of  the observation  made  by the
Division Bench that high  marks were  undeservedly given to
the three  candidates related  to Shri R.C. Marya  and Shri
Raghubar Dayal Gaur and low marks were deliberately given to
the meritorious candidates with  a view to manipulating the
selection of the former at the cost of the latter. We are of
the view  that there was no material whatsoever on record to
justify such  observation on the part of the Division Bench.
In fact,  far from  there being any material  supportive of
such observation.  We find  that there is one circumstance,
which, in our opinion, completely militates against the view
taken by  the Division Bench and  that circumstance is that
the  marks   obtained  by  the candidates  at the  written
examination were not disclosed to the members of the Haryana
Public Service  Commission  who   held   the viva voce
examination. If the members, who interviewed the candidates,
did not know what were the marks obtained by the candidates
at the written examination, it is difficult to see how they
could  have   manipulated  the marks at   the  viva voce
examination with  view to  pushing up  the three  candidates
related to  Shri R.C.  Marya and Shri Raghubar Dayal Gaur or
any other  candidates of  their choice so as  to bring them
within the range of selection.
     But the  question still  remains whether the selections
made by the Haryana Public Service Commission could be said
to be  vitiated on  account of the fact that Shri R.C. Marya
and Shri  Raghubar Dayal  Gaur participated in the selection
process, though Trilok Nath  Sharma who was related to Shri
Raghubar Dayal Gaur and  Shakuntala Rani  and Balbir  Singh
both  of   whom were  related to  Shri  R.C. Marya, were
candidates for selection. It  is undoubtedly true that Shri
Raghubar Dayal Gaur did  not participate  when Trilok Nath
Sharma came  up for  interview and similarly Shri R.C. Marya
did not participate when  Shakuntala Rani  and Balbir Singh
appeared for  interview at  the viva  voce examination. But,
according to  the petitioners, this was  not sufficient  to
wipe out  the blemish  in the  process of  selection for two
reasons: firstly,  because Shri R C. Marya and Shri Raghubar
Dayal Gaur  participated in  the  interviews  of  the  other
candidates and that gave  rise to a reasonable apprehension
in
683
the mind  of the  candidates that  Shri R.C.  Marya and Shri
Raghubar Dayal Gaur might  tend to depress the marks of the
other candidates  with a  view to  ensuring the selection of
the candidates related to  them and secondly, because there
could  be   reasonable apprehension  in  the  mind  of the
candidates that the other  members of the  Haryana  Public
Service Commission interviewing the candidates might, out of
regard for  their colleagues,  tend to give higher marks to
the  candidates  related  to  them,  The  argument  of the
petitioners was that the  presence of Shri R.C.  Marya and
Shri Raghubar  Dayal Gaur on the interviewing committee gave
rise to an impression that there was reasonable likelihood
of bias in favour  of the  three candidates related to Shri
R.C. Marya  and Shri  Raghubar Dayal  Gaur and this had the
effect of  vitiating  the  entire  selection  process. This
argument was  sought to be supported  by the petitioners by
relying on the decisions reported in D.K. Khanna v. Union of
India & Ors. Surinder Nath Goel  v. State of Punjab and M.
Ariffudin v.  D.D. Chitaley  & Ors.  We do  not think this
argument can  be sustained  and for  reasons, which we shall
presently state, it is liable to be rejected.
     We agree  with the petitioners that  it is  one of the
fundamental principles of our jurisprudence that no man can
be a  Judge in his  own  cause and  that  if there  is  a
reasonable likelihood  of bias it is  "in  accordance with
natural justice and common sense that the justice likely to
be so  biased should  be incapacitated from  sitting". The
question is  not whether  the judge is actually biased or in
fact  decides partially,  but whether  there is  a real
likelihood of  bias. What is objectionable in such a case is
not that the decision is actually tainted with bias but that
the  circumstances  are such  as  to  create  a  reasonable
apprehension  in   the mind  of  others  that there  is  a
likelihood  of bias  affecting  the  decision.  The  basic
principle underlying this rule is that justice must not only
be done but must  also appear to be done and this rule has
received wide  recognition  in several decisions  of this
Court. It  is also  important to  note that this rule is not
confined to  cases where  judicial power  stricto  sensu  is
exercised. It  is appropriately extended to all cases where
an independent mind has  to be applied to arrive at a fair
and just  decision between  the rival claims of  parties.
Justice is not the
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function of  the courts alone; it  is also  the duty of all
those who  are expected to decide fairly between contending
parties.  The strict standards   applied  to authorities
exercising judicial  power are being increasingly applied to
administrative bodies, for it is vital to the maintenance of
the rule of law in a welfare state where the jurisdiction of
administrative bodies in increasing at a rapid pace that the
instrumentalities  of the  State  should  discharge  their
functions in  a fair  and just manner. This was the basis on
which the  applicability of  this rule was extended  to the
decision-making process of a selection committee constituted
for selecting officers to the Indian Forests Service in A.K.
Kraipak v. Union of India happened in this case was that one
Naquisbund, the acting Chief  Conservator of Forests, Jammu
and Kashmir  was a  member of  the Selection Board which had
been set  up to select officers to the Indian Forest Service
from those  serving in the Forest  Department of  Jammu and
Kashmir. Naquisbund  who was a member of the Selection Board
was also  one of  the candidates for selection to the Indian
Forest Service. He did not sit on the Selection Board at the
time when  his name  was considered for selection but he did
sit  on  the  Selection   Board  and  participated  in the
deliberations when  the names  of his  rival  officers were
considered for selection and took part in the deliberations
of the Selection Board while preparing  the  list  of the
selected candidates  in order of preference. This Court held
that the  presence of  Naquishbund vitiated the selection on
the ground  that there was reasonable likelihood  of bias
affecting the  process of  selection. Hegde,  J. speaking on
behalf of  the Court  countered the argument that Naquisbund
did not take part  in the  deliberations of  the  Selection
Board when his name was considered, by saying:
 "But then  the very  fact that  he was a member of
     the Selection  Board must have its  own impact  on the
     decision of  the Selection Board. Further, admittedly,
     he participated  in the  deliberations of the Selection
     Board  when   the claims of  his   rivals  ... were
     considered. He was also party to the preparation of the
     list of  selected candidates in order of preference. At
     every stage of his participation in the deliberation of
     the selection  board, there  was a conflict between his
     interest and  duty .  ... The  real  question  is not
     whether he was biased.  It is  difficult to  prove the
     state of mind of a person. Therefore what we
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     have to  see is  whether there is reasonable ground for
     believing that  he was  likely  to  have been  biased
     .......... There  must be a reasonable  likelihood  of
     bias. In  deciding the question of bias we have to take
     into consideration human probabilities  and  ordinary
     course of human conduct."
This  Court   emphasised  that it  was  not  necessary  to
establishes as but it was  sufficient to  invalidate the
selection process  if it  could be  shown  that  there was
reasonable likelihood  of bias. The likelihood of bias may
arise on  account of  proprietory interest  or on account of
personal  reasons,  such  as,  hostility  to  one  party  or
personal friendship  or family relationship with the other.
Where reasonable  likelihood of basis is  alleged  on the
ground of  relationship, the  question would always be as to
how close  is the  degree of relationship or in other words,
is the nearness of relationship so great as to give rise to
reasonable apprehension of bias on the part of the authority
making the selection.
     The High  Court of Himachal Pradesh  in D.K.  Khanna's
case (supra)  drawing inspiration  from A.K. Kraipak's case,
held  that  where  one of  the members  of  the  Committee
constituted for selecting members of the State Civil Service
for promotion  to the Indian Administrative Service, was the
son-in-law of a candidate who was competing for inclusion in
the  list  of  selected candidates,  the  entire  selection
process was  vitiated by the presence of such member, though
he did not take any part in the consideration of his father-
in-law's candidature  or in  any manner try to influence his
colleagues in  regard to  his father-in-law.  The High Court
observed that the degree of relationship in this case was so
close as  to reasonably give an  impression  to  the  other
candidates that there was  a real likelihood of the son-in-
law espousing  the cause of his father-in-law as his own. So
also in Surinder Nath Goel's case (supra), the High Court of
Punjab and  Haryana took  the same  view where it was found
that two  of the  candidates appearing for  selection were
related to  one of  the members of the Selection Committee.
The same  approach was adopted by  the High Court of Andhra
Pradesh in  M. Aiffurdin's  case (supra)  where one  of the
members of  the Andhra Pradesh Public Service Commission who
sat on the Commission and participated in the selection for
the posts  of Professor and Lecturer  in the Andhra Pradesh
Technical Education  Service, was a partner with some of the
candidates appearing  for the selection and it was held that
the
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entire selection  process was  vitiated, because  there was
clearly reasonable  likelihood of  bias in  favour of  those
candidates on  the part of such member of the Commission. We
may  point  out that  so  far as  this  last decision  is
concerned, it  does  not  appear  that the  member  of the
Commission who was a  partner with  some of the candidates,
withdrew when  those candidates came to  be interviewed and
did  not   participate in   the  consideration  of   their
candidature.
     We must straightaway point out that A.K. Kraipak's case
is a  landmark in  the development of administrative law and
it has contributed in a large measure to the strengthening
of the rule of law in this country. We would not like to
whittle down  in the  slightest measure the vital principle
laid down  in this decision which has nourished the roots of
the rule  of law  and injected justice and  fair play into
legality.  There  can  be  no  doubt  that  if a  selection
committee  is  constituted  for the  purpose  of  selecting
candidates on merits and one of the members of the Selection
Committee is  closely related  to a  candidate appearing for
the selection, it would not be enough for such member merely
to withdraw  from participation in  the  interview  of the
candidate related  to him  but he  must withdraw  altogether
from the entire selection process and ask the authorities to
nominate another  person  in  his  place  on  the  selection
committee, because  otherwise all  the selections made would
be vitiated  on account of reasonable likelihood  of bias
affecting the  process of  selection. But the situation here
is a little different because the selection of candidates to
the Haryana Civil Service (Executive) and allied services is
being made  not by  any Selection  Committee constituted for
that purpose  but it  is being done by the Haryana  Public
Service Commission  which  is  a  Commission  set  up  under
Article 316  of the  Constitution. It  is a Commission which
consists of a Chairman and a specified member of members and
is a  Constitutional Authority. We do not think  that the
principle which requires  that a  member  of a  Selection
Committee whose close relative is appearing  for selection
should decline to become a member of the selection committee
or withdraw  from it  leaving it to the appointing authority
to nominate  another person in his place, need be applied in
case of a Constitutional  Authority like the Public Service
Commission, whether  Central or State. If  a  member  of  a
Public Service Commission were to withdraw altogether from
the selection process on the ground that a close relative of
his is appearing for  selection, no  other  person  save  a
member can be substituted in his place. And it may sometimes
happen that  no other  member is available to take the place
of such
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member and  the functioning of the Public Service Commission
may be affected. When two or more  members  of  a  Public
Service Commission are holding a viva voce examination. they
are functioning not as individuals but as the Public Service
Commission. Of course, we  must make  it clear that when a
close relative of a member of a Public Service Commission is
appearing for  interview, such member must  withdraw from
participation in  the interview of that  candidate and must
not take  part in  any discussion in regard to the merits of
that candidate and even  the marks or credits given to that
candidate should not be disclosed to him. Chinnappa Reddy, J
observed to the same effect in Javid Rasool Bhat v. State of
J and  K while dealing with  a similar question which arose
before him for consideration:
 "The procedure  adopted by the Selection Committee
     and the  member concerned was in accord with the quite
     well-known and  generally accepted procedure adopted by
     the Public Service Commission  everywhere. It  is not
     unusual  for  candidates  related to  members  of the
     Service Commission or Other Selection Committee to seek
     employment.  Whenever  such  a  situation arises, the
     practice generally is  for  the  member  concerned  to
     excuse  himself   when  the   particular  candidate  is
     interviewed. We  notice that  such a situation had also
     been noticed  by this Court in the case of Nagarajan v.
     State of  Mysore where  it was  pointed out that in the
     absence of mala fides,  it would not be right to set
     aside  the  selection  merely   because  one   of the
     candidates happened  to be related to  a member of the
     Selection Committee    who   had   abstained from
     participating  in the  interview of  that  candidate.
     Nothing  unusual  was  one by  the  present  Selection
     Committee. The  girl's father  was not present when she
     was interviewed.  She was one  among  several  hundred
     candidates. The  marks obtained  by her  in the written
     test were not even known when she was interviewed......
     In the  case before  us, the  Principal of the Medical
     College, Srinagar, dissociated himself from the written
     test and  did not participate in the proceedings when
     his daughter was interviewed. When the other candidates
     were interviewed, he did not know  the marks obtained
     either by his daughter or by any of the candi-
688
     dates. There  was no occasion to suspect his bona fides
     even remotely.  There was not even a suspicion of bias,
     leave alone  a reasonable likelihood of bias. There was
     no violation of the principles of natural justice."
We wholly  endorse there  observations. Here  in the present
case it was common  ground between  the parties  that Shri
Raghubar Gaur  Dayal Gaur  did not  participate at  all  in
interviewing Trilok Nath Sharma and likewise Shri R.C. Marya
did not participate at all when Shakuntala Rani and Balbir
Singh came  to be  interviewed and  in fact,  both  of them
retired from the  room   when  the  interviews  of  their
respective relatives  were held.  Moreover, neither  of them
took any  part in  any discussion in regard to the merits of
his relatives  nor is  there anything to show that the marks
or credits  obtained by their respective  relatives at the
interviews were disclosed to  them. We are therefore of the
view that there was no infirmity attaching to the selections
made by the Haryana Public Service Commission on the ground
that, though  their close  relative were  appearing for the
interview, Shri Raghubar Dayal Gaur and Shri R.C. Marya did
not withdraw  completely from  the entire selection process.
This  ground   urged  on  behalf  of  the  petitioners must
therefore be rejected.
     There was also one other contention which found favour
with the  Division Bench  in support  of its conclusion that
there was reasonable likelihood of bias vitiating the "whole
gamut of  the selection process". This contention was based
on the fact that though only 61 vacant posts were advertised
for being  filled up, over 1300 candidates representing more
than 20 times the number of available vacancies, were called
for the viva voce  examination. The  Division Bench pointed
out that  in order  to have  a proper  balance between the
objective  assessment  of  a  written  examination  and the
subjective assessment  of personality  by a  viva voce test,
the candidates to be  called for interview at the viva voce
test should  not exceed twice or at the highest, thrice the
number of  available vacancies. This practice of confining
the number of candidates to be called for interview to twice
or at  the highest,  thrice the number of  vacancies to  be
filled up,  was being  followed consistently  by  the  Union
Public Service  Commission  in   case of  Civil  Services
Examination, but  in the present case, observed the Division
Bench, a  departure was made by  the Haryana Public Service
Commission and candidates numbering  more than 20 times the
available vacancies  were called  for interview. The result,
according to the Division Bench, was that the area of
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arbitrariness  in   the viva  voce  test  was considerably
enlarged and  even a  student who  had got poor marks in the
written examination   and  who  having  regard  to  dismal
performance at the written examination did not deserve to be
called for interview, could get a chance of being called and
he could  then be pulled up within the range of selection by
awarding unduly high marks  at the  viva voce examination.
This conclusion was sought to be buttressed by the Division
Bench by  relying on  a comparison  of the marks obtained by
some of the petitioners  in the  written examination and at
the viva voce test. This comparison showed that eight of the
petitioners secured  "a percentage  of around  60  per cent
rising up  to a highest of  68.5 per  cent" in the written
examination, but  they were  awarded  "a  disastrously low
percentage of  marks in the viva voce ranging from the rock
bottom of  13 per cent to 21 per cent", making it impossible
for them  to bridge  the difference so as to be able to come
within the  range of  selection. How  could  such  brilliant
candidates who had done  so well in the written examination
fare so poorly in the viva voce test that they could not get
more than  20 per  cent marks, asked the Division Bench? The
Division Bench also pointed out that some out of these eight
petitioners had appeared in  an earlier examination held in
1977-78 and  at the  viva voce test held at that time. they
had secured  more than 50 to  55 per  cent marks and it was
difficult to  believe that  during the next three succeeding
years, they  had deteriorated  to such an extent  that they
slumpted down  to 20 per cent marks. The Division Bench also
analysed the  comparative marks obtained by  the  first  16
candidates who topped the  list in  the written examination
and noted that on account of the poor marks obtained by them
at the viva voce  test, 10  out of these 16 candidates were
"knocked out  of the  race" because  their ranking,  on the
basis of  the total  marks obtained  by them  in them in the
written examination  and the  viva voce test, went for below
61 and only 4 out of the remaining 6 could rank within the
first 16 so as to be eligible for appointment in the Haryana
Civil Service (Executive Branch) which is a superior service
compared to  other allied  services. It was also pointed out
by the Division Bench that out of 16 candidates who topped
the list  on the  basis of  combined marks  obtained in the
written and  viva voce examinations  and  who consequently
secured appointment  to posts  in the  Haryana Civil Service
(Executive Branch),  12 could make it only on account of the
high marks  obtained by them at  the viva voce examination,
though they  were not  high up in ranking  in the  written
examination. On the basis of
690
these facts  and circumstances, the Division Bench concluded
that the  petitioners had  discharged the  burden of showing
that there  was reasonable  likelihood of bias vitiating the
entire selection process.
     We do  not think  we can  agree  with  this  conclusion
reached by  the Division  Bench. But whilst disagreeing with
the conclusion, we  must  admit  that the  Haryana  Public
Service Commission  was not  right in  calling for interview
all the 1300 and  odd candidates  who secure 45 per cent or
more marks  in the  written  examination.  The respondents
sought to  justify the action of the Haryana Public Service
Commission by  relying on  Regulation 3 of the Regulations
contained  in Appendix  1  of the  Punjab  Civil  Service
(Executive Branch)  Rules 1930 which were applicable in the
State of Haryana and contended that on a true interpretation
of that Regulation, the  Haryana Public  Service Commission
was bound  to call  for interview  all the  candidates who
secured a  minimum of  45 per cent marks in the aggregate at
the written  examination. We do not think this contention is
well founded. A plain reading of Regulation 3 will show that
it is  wholly  unjustified.  We have  already referred  to
Regulation 3  in an earlier part of the judgment and we need
not reproduce  it again.  It is clear on  a  plain  natural
construction of Regulation 3  that what  it  prescribes  is
merely a  minimum qualification for eligibility to appear at
the viva  voce test.  Every candidate  to  be  eligible for
appearing at  the viva voce test must obtain at least 45 per
cent marks  in the aggregate in the written examination. But
obtaining of  minimum 45  per cent  marks does not by itself
entitle a  candidate to insist that he should be called for
the viva  voce test.  There is no obligation on the Haryana
Public Service Commission to  call for the viva  test all
candidates who satisfy the minimum eligibility requirement.
It is  open to the Haryana Public Service Commission to say
that out  of the  candidates  who  satisfy  the eligibility
critarion of  minimum 45  per  cent  marks  in the  written
examination, only  a limited number of candidates at the top
of the list shall  be called  for interview.  And this has
necessarily to be done because otherwise the viva voce test
would reduced  to a farce. It is indeed difficult to see how
a viva voce test  for properly and satisfactorily measuring
the personality of a  candidate can be carried out, if over
1300 candidates are to be interviewed for recruitment to a
service. If  a viva  voce test is to  be carried  out in  a
thorough and  scientific manner,  as it must be in order to
arrive at   a fair  and  satisfactory evaluation  of the
personality  of  a  candidates,  the  interview  must take
anything between 10 to 30
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minutes. In  fact, Herman  Finer in  his book on "Theory and
Practice  of   Modern  Government"   points  out  that "the
interview should  last at  least half  an hour".  The  Union
Public Service Commission making  selections for the Indian
Administrative Service also  interviews  a  candidate for
almost half an hour. Only 11 to 12 candidates are called for
interview in  a day of 51/2 hours. It is obvious that in the
circumstances, it  would  be  impossible  to  carry  out  a
satisfactory viva  voce test  if such  a large unmanageable
number of  over 1300  candidates are  to be interviewer. The
interviews would  then tend  to be  casual, superficial and
sloppy and  the assessment made at such interviews would not
correctly reflect the true measure of the personality of the
candidate. Moreover,  such a  course would widen the area of
arbitrariness, for  even a  candidate who is very much lower
down in the list  on the  basis of  marks obtained  in the
written examination,  can, to  borrow an  expression used by
the  Division Bench, 'gate-crash'   into  the   range  of
selection, if  he is  awarded unduly  high marks at the viva
voce examination.  It has therefore always been the practice
of  the  Union Public  Service  Commission  to  call for
interview, candidates  representing not more than  twice or
thrice the   number   of   available vacancies.   Kothari
Committee's Report  on the 'Recruitment Policy and Selection
Methods for the Civil Services Examination' also points out,
after an  indepth examination  of the  question as  to what
should be  the number of  candidates to  be called for
interview :
 "The number of  candidates to  be called for
     interview, in  order of  the  total  marks in  written
     papers, should  not exceed,  we think, twice the number
     of vacancies to be filled.. ."
Otherwise the  written examination  which is definitely more
objective in  its assessment  than the viva voce  test will
lose all  meaning and  credibility and the viva  voce test
which is  to some extent subjective and discretionary in its
evaluation will become the decisive factor in the process of
selection. We  are therefore of the view that where there is
a  composite   test  consisting of  a written examination
followed by a viva voce test, the number of candidates to be
called for  interview in  order of the marks obtained in the
written examination,  should not  exceed  twice or  at the
highest, thrice the number  of vacancies  to be filled. The
Haryana Public Service Commission in the present case called
for  interview all  candidates  numbering  over  1300 who
satisfied the minimum eligibility requirement by securing a
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minimum of  45 per cent marks in the written examination and
this was  certainly not right, but we may point out that in
doing so  the Haryana Public Service Commission could not be
said to be actuated  by any  malafide or  oblique  motive,
because it  was common ground between the parties that this
was the practice which was being  consistently followed by
the Haryana  Public Service  Commission over  the years and
what was done in this case was nothing exceptional. The only
question is  whether this had any invalidating effect on the
selections made by the Haryana Public Service Commission.
     We do not think that the selections made by the Haryana
Public Service Commission could  be  said  to be  vitiated
merely on  the ground that  as  many as  1300  and more
candidates representing more than  20 times  the number  of
available vacancies were called for interview, though on the
view taken by us that was not the right course to follow and
not more  than twice or at the highest thrice, the number of
candidates should  have been called for interview. Something
more  than   merely  calling   an  unduly  large  number  of
candidates  for  interview  must   be shown  in  order  to
invalidate the selections made.  That is  why the  Division
Bench relied on the comparative figures of marks obtained in
the written  examination and  at the  viva voce test by the
petitioners, the  first 16 candidates who topped the list in
the written  examination and  the first 16  candidates who
topped the  list on the basis of the combined marks obtained
in the written examination  and the  viva  voce  test, and
observed that these figures showed that there was reasonable
likelihood of  arbitrariness and bias having operated in the
marking at  the viva  voce test. Now it is true that some of
the petitioners did quite  well in  the written examination
but faired  badly in  the viva voce test  and in fact their
performance  at  the  viva   voce  test  appeared  to have
deteriorated in comparison to their performance in the year
1977-78. Equally  it is true  that  out  of  the  first  16
candidates who topped the  list in the written examination,
10 secured  poor rating in viva voce test and where knocked
out of the reckoning while 2 also got low marks in the viva
voce test  but just managed to scrape through to come within
the range  of selection.  It is also true  that out  of the
first 16  candidates who topped the list on the basis of the
combined marks obtained in  the written examination and the
viva voce test, 12 could come in the list only on account of
the high  marks obtained  by them  at the  viva voce  test,
though the marks obtained by them in the written examination
were not of sufficiently high order. These
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figures relied upon by the Division  Bench  may  create  a
suspicion in  one's mind  that some element of arbitrariness
might  have   entered  the   assessment in  the  viva voce
examination. But  suspicion cannot  take the  place of proof
and we cannot strike down the selections made on the ground
that the  evaluation of the merits of the candidates in the
viva voce examination might be arbitrary. It is necessary to
point out  that the  Court cannot  sit in  judgment over the
marks awarded  by interviewing bodies unless it is proved or
obvious that the  marking   is  plainly  and indubitably
arbitrary or  affected by oblique motives. It is only if the
assessment  is patently   arbitrary or   the   risk  of
arbitrariness is  so high  that a  reasonable  person  would
regard arbitrariness  as inevitable,  that the assessment of
marks at  the viva  voce test  may be  regarded as suffering
from the  vice of  arbitrariness. Moreover,  apart from the
only  three   candidates,  namely.   Trilok   Nath   Sharma,
Shakuntala Rani and Balbir Singh one of whom belonged to the
general category and was related to Shri Raghubar Dayal Gaur
and the other two were candidates for the seats reserved for
Scheduled Castes  and were related to Shri R.C. Marya, there
was no other candidate in whom the Chairman or any member of
the Haryana  Public Service  Commission was  interested,  so
that there could be any motive for manipulation of the marks
at the viva voce  examination. There were of course general
allegations of casteism made  against the  Chairman and the
members of  the Haryana Public Service Commission, but these
allegations were not substantiated by producing any reliable
material before the Court.  The Chairman and members of the
Haryana Public Service  Commission  in  fact belonged  to
different castes  and it  was not as if any particular caste
was predominant amongst the  Chairman and  members  of the
Haryana Public Service Commission  so as  even to  remotely
justify an   inference that  the  marks  might  have been
manipulated to favour the  candidates of  that caste. We do
not think that the Division Bench was right in striking down
the selections made by the Haryana Public Service Commission
on the ground that they were vitiated by arbitrariness or by
reasonable likelihood of bias.
     That takes us to the next  ground of  challenge which
found acceptance  with the  Division Bench.  This ground  of
challenge was strenuously urged on behalf of the petitioners
and it was sought  to be  supported  by  reference  to the
decision of  this Court in Ajay Hasia v. Khalid Mujjubudin.
The contention of the petitioners under this
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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 viva  voce  test.  We have
already referred  to the  Punjab  Civil Service  (Executive
Branch) Rules  1930 as applicable in  the State of Haryana.
Rule  9  of  these  rules  prescribes that  a competitive
examination shall be held in accordance with the Regulations
set out in Appendix  1 for  the  purpose  of  selection  by
competition of candidates  to the  Haryana  Civil  Service
(Executive Branch)  and other allied services  and  under
Regulations 1  and 5  every ex-service officer has to appear
in a  written examination  in 5 compulsory subjects carrying
in the aggregate 400 marks and a viva voce test carrying 200
marks and likewise, every candidate belonging to the general
category has  to  appear  in  a written  examination  in  8
subjects carrying  in the  aggregate 700  marks and  for him
also there  is a  viva voce  test carrying  200 marks. The
argument of  the petitioners  was that in case of ex-service
officers the marks allocated for the viva voce test were 200
as against 400 allocated for the written examination so that
the marks  allocated for the viva voce test came to 33.3% of
the total  number of  taken into  account for the purpose of
making selection.   So also  in  the case  of  candidates
belonging to  the general  category, the marks allocated for
the viva voce test were 200 as against 700 allocated for the
written examination with the result that the marks allocated
for the viva voce test came to 22.2% of the total number of
marks for  the competitive  examination. This  percentage of
33.3% in  the case  of ex-service  officers and 22.2% in the
case of other candidates  was, according  to  the  Division
Bench, unduly high  and  rendered  the  selection  of the
candidates arbitrary.  The correctness of this view has been
challenged before us on behalf of the respondents.
     This Court speaking through Chinnappa Reddy, J. pointed
out in Liladhar v. 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
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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  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. To quote the words of Chinnappa Reddy, J. "In the very
nature of things it would not be within the province or even
the competence of the court and the Court would not venture
into such  exclusive thickets to discover ways out, when the
matters are  more appropriately left" to  the wisdom of the
experts. It  is not  for  the  Court  to  lay  down  whether
interview test should be  held at  all or  how many  marks
should be  allowed for the interview  test. Of course the
marks  must   be  minimal   so as   to avoid charges  of
arbitrariness, but  not necessarily  always. There may posts
and appointments  where the  only proper method of selection
may be by a viva voce test. Even in the case of admission to
higher degree  courses, it  may sometimes  be  necessary  to
allow a fairly high  percentage of  marks for the viva voce
test. That  is why  rigid rules cannot be laid down in these
matters and not any courts. The experts bodies are generally
the best  judges. The  Government aided by experts  in the
field may appropriately decide to have a written examination
followed by a viva voce test.
     It is  now admitted  on all  hands that while a written
examination   assesses the   candidate's   knowledge and
intellectual ability,  a viva  voce test  seeks to  assess a
candidate's overall  intellectual  and personal  qualities.
While a written examination has certain distinct advantages
over the  viva voce  test, there  are yet  no written  tests
which can  evaluate  a candidate's  initiative,  alertness,
resourcefulness, dependableness,  cooperativeness,  capacity
for  clear   and  logical   presentation,  effectiveness  in
discussion,  effectiveness   in meeting  and  dealing with
others, adaptability,  judgment, ability  to make  decision,
ability to  lead, intellectual and moral integrity. Some of
these qualities can be evaluated, perhaps with some degree
of error,  by a viva  voce  test,  much  depending  on the
constitution of the interview Board.
     Glenn Stahl  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
696
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 (supra),  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   personnel
attributes are considered essential. Glenn Stahl 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  prime 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 personnel  characteristics and traits
and in fact, tests the man himself and is therefore regarded
as an important tool along with 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  Chinnappa  Reddy,  J.  in
Liladhar's case,  "where the  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 lief,  greater 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. It was for this
reason that  in Ajay  Haisa's case  this Court took the view
that the  allocation of as high  a percentage of marks  as
33.3% to  the viva  voce test  was  "beyond  all  reasonable
proportion and rendered the  selection of  the  candidates
arbitrary". But,  as pointed out by Chinnappa Reddy, 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 academic
and professional  requirements being  satisfied". There may
also be services "to which recruitment is made from younger
candidates whose  personalities are  on the  thresh hold  of
development and who show sings of great promise" and in case
of such services where sound selection must combine academic
ability with  personality promise,  some weight has  to  be
given to  the viva  voce test. There cannot be any hard and
fast rule  regarding the  precise weight  to be given to the
viva voce  test as  against the written examination. It must
vary from service to service
697
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 the viva voce test is proposed to be entrusted and a
host of other factors. It  is essentially  a matter for
determination by  experts. The Court does  not possess the
necessary equipment  and it would not be right for the Court
to pronounce  upon it, unless to use the words of Chinnappa
Reddy, J.  in Liladhar's  case "exaggerated  weight has been
given with proven or obvious oblique motives."
     We may  now, in  the  background  of  this discussion,
proceed to  consider whether  the allocation  of as  high  a
percentage of  marks as 33.3 per cent in case of ex-service
officers and  22.2 per cent in case of other candidates, for
the viva  voce test renders the selection process arbitrary.
So far as ex-service officers are concerned, there can be no
doubt that  the percentage  of marks  allocated for the viva
voce test  in their  case is  unduly high and it does suffer
from the  vice of  arbitrariness. It has been pointed out by
the Division  Bench in a fairly elaborate discussion that so
far as the present selections in the category of ex-service
officers are concerned, the spread of marks in the viva voce
test was  inordinately high  compared to the spread of marks
in the written examination. The minimum marks required to be
obtained in  the written examination for eligibility for the
viva voce  test are  180 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 thus being only 90 marks
which works  out to  a ratio  of 22.2  per cent. But when we
turn to the marks  obtained in the viva voce test, we find
that  in  case of  ex-service officers  the  lowest  marks
obtained were  20 while the highest  marks secured were 171
and the spread of  marks in  the viva voce test was thus as
wide as 151 in a total of 200 marks, which worked out to an
inordinately high  percentage of  76. 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. It is therefore obvious
that the allocation of
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such a high percentage of marks as 33.3 per cent opens the
door wide  for arbitrariness,  and in  order to diminish, if
not eliminate  the risk of arbitrariness,  this  percentage
need to be reduced. But while considering what percentage of
marks may  legitimately be  allocated for the viva voce test
without incurring  the reproach of arbitrariness it must be
remembered that ex-service  officers  would  ordinarily  be
middle aged  persons of mature personality  and it would be
hard on them at  that age  to go  through  a  long  written
examination involving  8 subjects  and hence it would not be
unfair to  require them to go through a  shorter  written
examination in only 5 subjects and  submit to a viva voce
test carrying  a higher percentage of marks than that might
be  prescribed in  case   of younger   candidates. The
personalties of these ex-service officers being fully mature
and developed, it would not be difficult to arrive at a fair
assessment of  their merits  on the  basis of  searching and
incisive viva  voce test  and therefore in their  case, the
viva voce  test may  be accorded  relatively greater weight.
But in any event  the marks allocate for the viva voce test
cannot be as high as 33.3 per cent.
     The position  is  no  different  when  we examine the
question in  regard to the percentage of marks allocated for
the viva  voce test  in case  of persons  belonging  to the
general category.  The percentage  in the  case  of  these
candidates is  less than  that in  the case  of  ex-service
officers, but  even so it is  quite high  at the  figure of
22.2. Here  also it  has been  pointed out  by the  Division
Bench by  giving facts and figures as to how in the case of
present selections  from the  general category the spread of
marks in  the viva  voce test was inordinately high compared
to the spread of marks in the written examination so that a
candidate receiving  low marks in the written examination
could be  pulled up  to a high position in the merit list by
inordinately high  marking in  the viva voce test. The viva
voce test  in the  general category, too, would consequently
tend to become a  determining factor in  the process  of
selection, tilting  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. Earlier  in 1948 the percentage of marks allocated for
the viva voce
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test was  22 and  it was marginally brought down to 21.60 in
1951 and  then again  in 1964, it was scaled down to 17.11.
The Kothari Committee in its Report made in 1976 pleaded for
further reduction  of the  percentage of marks allocated for
the viva  voce test  and strongly  recommended that the viva
voce test  should carry only 300  out of  a total  of 3000
marks. The Kothari Committee pointed out that even where the
percentage of  marks allocated for the viva voce  test was
17.11, nearly  1/4th of the candidates selected owed their
success to the marks obtained by them at the viva voce test.
This proportion was regarded  by the  Kothari Committee  as
"somewhat on  the high side". 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  personnel characteristics and  traits  are  extremely
relevant for  the purpose  of selection, the marks allocated
for the viva voce test constitute only 12.2 per cent of the
total marks.  Now if  it was found in the case of selections
to  the Indian Administrative Service  and  other  allied
services that  the allocation  of even 17.11 per cent marks
for the viva voce  test was  on the  higher side and it was
responsible for nearly 1/4th  of  the selected  candidates
securing a  place in  the select  list owing  to  the  marks
obtained by  them at  the viva voce test, the allocation of
22.2 per  cent marks  for the viva voce test would certainly
be likely  to create  a wider  scope for arbitrariness. When
the  Kothari   Committee  admittedly  an  Expert  Committee,
constituted for the purpose of examining recruitment policy
and selection  methods for the Indian Administrative Service
and other  allied services took the view that the allocation
of 17.1 per cent  marks for  the viva voce test was on the
higher side  and  required  to be  reduced,  it  would  be
legitimate to hold that in case of selections to the Haryana
Civil Services (Executive Branch) and other allied services,
which are  services of similar nature in  the State, the
allocation of 22.2 per cent marks for the viva voce test was
unreasonable. We  must therefore  regard the  allocation  of
22.2 per  cent of  the total marks for the viva voce test as
infecting  the selection  process   with   the   vice  of
arbitrariness.
     But the question which then arises for consideration is
as to  what is the effect  of allocation  of  such  a high
percentage of marks
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for the viva voce test, both in case of ex-service officers
and in case of other candidates, on the selections made by
the Haryana  Public Service Commission. Though we have taken
the view that the percentage of marks allocated for the viva
voce test  in both these cases is excessive, we do not think
we would  be justified in the exercise of our discretion in
setting aside  the selections  made by the  Haryana  Public
Service Commission  after the lapse of almost two years. The
candidates selected by the Haryana Public Service Commission
have already  been appointed  to various posts and have been
working on  these posts since the  last  about two  years.
Moreover the  Punjab Civil  Service (Executive Branch) Rules
1930 under  which 33.3 per cent marks in case of ex-service
officers  and 22.2  per   cent  marks in  case  of  other
candidates, have  been allocated for the viva voce test have
been in force for almost 50 years and everyone has acted on
the basis  rules. If  selections made in accordance with the
prescription contained in these  rules are  now to  be set
aside, it  will upset a large number of appointments already
made on the basis  of such selections and the integrity and
efficiency of  the entire  administrative machinery would be
seriously jeopardised. We do  not therefore  propose to set
aside the  selections made  by the  Haryana  Public  Service
Commission though  they have  been made on the basis of an
unduly high  percentage of marks allocated for the viva voce
test.
     Now if  the allocation  of such  a high  percentage  of
marks as  33.3 in  case of  ex-service officers and 22.2 in
case  of  other candidates,  for  the viva  voce  test  is
excessive,  as held  by  us,  what  should  be the  proper
percentage of  marks to be allocated for the viva voce test
in both these cases.  So far  as candidates  in the general
category are concerned we think that it would be prudent and
safe to follow 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 service 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
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the viva  voce test  shall not exceed 12.2  per cent 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 is 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. The percentage of marks allocated for the
viva voce  test case of ex-service officers may, for reasons
we have already discussed,  be somewhat  higher  than the
percentage for the  candidates belonging  to the  general
category. We  would therefore  direct that  in case  of ex-
service officers,  having regard to the fact that they would
ordinarily be  middle aged  persons with personalities fully
developed the  percentage of  marks allocated  for the viva
voce test  may be  25. Whatever selections are made by the
Haryana Public Service Commission in the future shall be on
the basis  that the  marks allocated  for the viva voce test
shall not  exceed  12.2 per  cent  in case  of  candidates
belonging to the general category and 25 per cent in case of
ex-service officers.
     Before we part with  this judgment  we would  like  to
point out  that the  Public Service  Commission occupies  a
pivotal place  of importance  in the State and the integrity
and  efficiency of  its  administrative  apparatus  depends
considerably on the quality  of the  selections made by the
Public Service Commission. It is absolutely essential that
the  best   and finest  talent  should  be  drawn  in the
administration and  administrative services must be composed
of men who are honest, upright and independent and who are
not swayed  by the  political winds  blowing in the country.
The selection  of candidates for the administrative services
must therefore be made strictly on merits, keeping in view
various factors which go to make up a strong, efficient and
people oriented administrator. This can be achieved only if
the Chairman  and members  of the  Public Service Commission
are  eminent  men  possessing  a  high degree of  calibre,
competence and integrity, who would inspire  confidence in
the public  mind about the objectivity and impartiality of
the selections to be  made by them. We would therefore like
to strongly impress upon every State Government to take care
to see that its  Public Service  Commission  is  manned  by
competent, honest  and independent  persons  of outstanding
ability and  high reputation  who command  the confidence of
the  people  and  who  would  not  allow  themselves  to  be
deflected by
702
any extraneous considerations from discharging their duty of
making selections  strictly on merits. Whilst making these
observations we would like  to make  it clear that we do no
for a  moment wish  to suggest that the Chairman and members
of the Haryana Public Service Commission in the present case
were lacking in calibre, competence or integrity.
     We would  also like  to point  out that  in some of the
States, and  the State of  Haryana  is one  of  them, the
practice followed  is to  invite a retired Judge of the High
Court as  an expert  when selections  for recruitment to the
Judicial Service  of the State are being made and the advice
given by  such retired High Court Judge who participates in
the viva  voce test as an expert is sometimes ignored by the
Chairman and  members of the Public Service Commission. This
practice is  in our opinion undesirable and does not commend
itself to  us. When  selections for  the Judicial Service of
the State  are being  made, it is necessary to exercise the
utmost care   to  see that  competent  and  able  persons
possessing a  high degree  of rectitude and  integrity are
selected, because  if we  do not  have good,  competent and
honest judges, the democratic polity of  the State  itself
will be in serious  peril. It is therefore  essential that
when selections to the Judicial Service  are being made, a
sitting Judge of the High Court to be nominated by the Chief
Justice of the State should be invited to participate in the
interview as an expert and since such sitting Judge comes as
an expert  who, by  reason of  the fact that he is a sitting
High Court  Judge, knows  the quality  and character  of the
candidates appearing  for the interview, the advice given by
him should  ordinarily be  accepted, unless there are strong
and cogent  reasons for not accepting such advice and such
strong and cogent reasons must be recorded in writing by the
Chairman and  members of  the Public  Service Commission. We
are giving  this direction  to the Public Service Commission
in every State because we are anxious that the finest talent
should be  recruited in the Judicial Service and that can be
secured only by  having   a real   expert  whose  advice
constitutes a determinative factor in the selection process.
     We accordingly   allow  the  appeals,  set  aside the
judgment of the Punjab and Haryana High Court and reject the
challenge to  the validity  of the  selections made  by the
Haryana Public Service Commission  to the  Haryana  Civil
Services (Executive  Branch) and  other allied services. But
in  view  of  the  fact that  an  unduly  large  number  of
candidates were called for interview and the marks
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allocated in the viva voce test were excessively high, it is
possible  that some  of  the candidates  who might have
otherwise come in the select list  were left out  of it,
perhaps unjustifiably. We would  therefore direct  that all
the candidates who secured a minimum of 45 per cent marks in
the written  examination but who could not find entry in the
select list,  should  be  given  one  more  opportunity  of
appearing in  the competitive  examination which  would now
have to be held in accordance with the principles laid down
in this Judgment and  this opportunity should be  given to
them, even  though they may have  passed  the maximum age
prescribed by the rules for recruitment to the Haryana Civil
Services (Executive  Branch) and  other allied services. We
would direct  that in the circumstances of the case the fair
order of  costs would be that each party should bear and pay
his own costs throughout.
M.L.A.       Appeals allowed
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