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Judgment
Lalit Mohan Sharma, J.—The petitioners in these two writ applications are unsuccessful candidates for appointment to gazetted posts under the State of Bihar. For the purpose of recruitment, a combined competitive examination in two parts--Written Test and Personality Test--was held. The written test carried a total of 850 marks. The merit of the candidates for Personality Test carrying 100 marks was assessed by a Board on the basis of interview which has been referred to by the learned counsel appearing before us as viva voce test. The petitioner in C.W.J.C. 494 of 1984 as well as the respondents 3 to 8 all obtained 565 as their respective aggregate marks-the petitioner and the respondents 7 and 8 getting higher marks in written papers than the other respondents who were awarded better marks at the interview and have been selected by the Commission for appointment. The petitioner and respondents 7 and 8 have been declared unsuccessful as sufficient number of vacancies are not available to accommodate all. Similarly, the petitioner and respondent No. 4 in C.W.J.C. 3785 of 1984 both belonging to "backward class'' obtained 561 marks but the respondent No. 4 has been selected for appointment on the basis of his higher marks in the Personality Test. The petitioners in the two cases contend that preference must be given to the candidates obtaining higher marks in written test and on that basis they (petitioners) should have been selected. The petitioners have also pleaded serious irregularities in the conduct of the examination. It is alleged that when the programme of the written test was announced in the local daily newspaper, it indicated that there were only 46958 candidates, but when the result was published, it appeared that 478 new roll numbers were added. The petitioners have described, them as unofficial candidates. For filling up 365 vacant posts, 1035 candidates were selected for Personality Test. In the final selection list, 20 out of the added 478 candidates were included, which has been challenged as illegal. Allegations of favouritism and mala fides have also been made in the applications. The respondent Commission has refuted the allegations.
The counter affidavit of the respondents has, in detail, explained the circumstances in which the additional roll numbers had to be allotted to the bonafide candidates duly entitled to be considered for selection. It has been stated that on account of the liberal policy of the Government, the number of the candidates swelled to over 47656 and it was, therefore, not possible to complete the scrutiny of the application forms manually without under delay. To expedite the matter, it was decided to take the help of Computer service. It was for the first time that such a decision was taken, but, unfortunately, it could not be a success. After the initial publication of the list, a large number of objections were received from the candidates who had applied in time after duly complying with all the requirements. After scrutinising their objections. Admit Cards were issued to them with new roll numbers. It is asserted that there was no irregularity in the selection of the successful candidates at ail. I have gone through all the allegations and counter allegations made on behalf of the parties and I have no hesitation in rejecting the petitioners'' case. It is true that at the time of filing of the writ applications, the petitioners had no knowledge of the relevant facts and on the basis of the confusion in the roll numbers, they were justified in raising the plea of irregularity but the persistence with which they pursued the matter even later and used strong language about favouritism etcetera is uncalled for. I would like to state here that apart from the confusion in the roll numbers, no other material or circumstance was relied upon before us by the learned counsel for the petitioners.
According to the rules applicable, the final selection has to be made on the basis of the candidates acquiring higher aggregate marks, but they do not in express terms deal with a case where two or more candidates score the same aggregate. According to the Commission, the candidate obtaining higher marks in viva voce test has to be preferred. The learned counsel for the Commission has, in answer to a query from the Bench, stated after taking instruction from the respondents, that no formal decision in writing has been taken in this regard and the respondent-Commission is following this practise since an observation by an earlier Chairman of the Commission was made several years back. The learned counsel for the other parties also have not suggested that there is any relevant rule or executive instruction in this regard. On behalf of the petitioners, however, reliance has been placed on the Government decision as contained in the notification, Annexure 14 (at pages 144 and 145 of the records) reducing the marks fixed for viva voce test from 200 to 100. The notification states that the decision to reduce the marks was taken as it was not practicable for any Board to accurately assess the personality and character of a candidate in the short time available for the interview and, as at times, evaluation is made on subjective considerations. It has also been said that sometime persons having special connection get undue advantage at the costs of the candidates scoring higher marks at the written examination. It has been rightly suggested on behalf of the petitioner that the reasons mentioned in the aforesaid decision clearly indicate that greater weight ought to be attached to the written examination.
On behalf of the petitioners, strong reliance was placed on the decision in Ashok Kumar Yadav and Others Vs. State of Haryana and Others, ; while the learned advocate for the respondents emphasised on the observations made in Lila Dhar Vs. State of Rajasthan and Others, .
The question which arose before the Supreme Court related to the proportion in which the total marks should be divided for written and viva voce test. The point arising before us has not been shown to have been discussed in any reported case. The observations in the cited cases, although not directly applying, are however helpful in resolving the present issue. As was observed by Chinnappa Reddy, J. in Lila Dhar''s case (supra), 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 and it must vary from service to service according to the requirement of the service, the minimum qualification prescribed, the age group from which selections is to be made and host of other factors. It is essentially a matter for determination by experts and Court does not possess the necessary equipment and it would not be right for the Court to pronounce upon it except in exceptional circumstances. The division of aggregate marks fixed for two tests is generally for the Rules to determine (except in exceptional circumstances) and in the present case, it has been so determined by allocating 850 marks for the Written Test and only 100 for Personality Test. This is not under challenge before us.
The process of selections and appointment in the present case in covered by the Bihar Civil Service (Executive Branch) and the Bihar Junior Civil Service (Recruitment) Rules, 1951 framed under Article 309 of the Constitution and an examination of the relevant provisions thereof shall be helpful for fully appreciating the arguments presented on behalf of the parties. Part II of the Rules deals with recruitment by competitive examination and the combined competitive examination in question was held in accordance with this Part. Rule 16 by clause (a) empowers the Commission to fix the qualifying marks with respect to the written examination, and by clause (c) clarifies that no qualifying marks shall be fixed for the viva voce test. The commission is to arrange for a viva voce test of the candidates who qualify according to their marks at the written examination. Rule 18 says that "the marks obtained at the viva voce test shall be added to the marks obtained at the written examination". The final list has to be prepared according to the aggregate marks The rule is, therefore, clear that if a candidate obtains as his aggregate a single mark more than the total marks of another candidate, he has to be preferred irrespective of what marks were obtained by them at the written and viva voce tests. The difficulty arises only where there is a tie.
It is not possible to lay down a rigid formula for resolving this for universal application to all kinds of appointments. Some appointments are made without holding any written examination at all; as for example, the direct appointment to a post of Additional District and Sessions Judge made by the High Court on the basis of the interview. But, generally appointments are made on the basis of a written examination followed by a viva voce test allocating higher marks at the written test and lower to the oral part. In my view, in all such cases, preference must be given to the candidates obtaining higher marks in the written examination. The observations made by the Supreme Court in Ashok Kumar Yadav''s case (supra) although in the context of the proportion to be allotted to the written examination and viva-voce test, are helpful in the present case also at they refer to their ''relative weight''. The view of Glenn Stahl in his book on Public Personal Administration referred to in paragraph 25 of the Supreme Court judgment pointing out the disadvantage in viva voce tests is illuminating. The difficulty of developing a valid and reliable oral test and the difficulty of securing a reviewable record thereof cannot be ignored. Judicial notice must be taken of the fact that the public in general is suspicious of corrupt, nepotistic and extraneous considerations weighing at such tests. It is true that viva voce tests also have their own advantages; but do they outweigh the factors in favour of the written examination? I do not think so and my view is reinforced by the circumstance that in all such selective processes in which the choice is made on the basis of both written examination and viva voce test, the marks reserved at the interview are invariably lower than these for the written part.
Coming to the combined examination which is under considerations before us, it will be observed that:
(a) the marks fixed for written examination are more than 8 times of those for the interview;
(b) while Rule 16(a) contemplates fixation of qualifying marks for the written examination by the Commission, clause (c) directs in imperative terms that no qualifying marks for viva voce test shall be fixed; thus a candidate securing even zero at the interview may be selected;
(c) by the decision in Annexure 14 while reducing the marks fixed for viva voce test from 200 to 100, it was observed that for the reasons mentioned therein the oral test could not be treated to be very dependable,
which all unmistakably lead to the conclusion that the result in the written examination has to be preferred to that in the oral test, whenever two candidates secure the same aggregate marks. The recommendation of the Commission having not been made on this basis must be modified.
So far as C.W.J.C. 3785 of 1984 is concerned, the petitioner having obtained 10 marks more than the respondent No. 4 in the written examination is entitled to be selected unless there be any other reason not to do so. As there is no additional vacancy to accommodate him, the respondent No. 4 has to make place for him. The respondent though served with a notice has not appeared in the case. In the circumstances, the Commission is directed to send a fresh modified recommendation dealing with the cases of the petitioner and the respondent No. 4.
In C.W.J.C. 494 of 1984, the marks obtained at the written examination by the respondent No. 7, petitioner, the respondent No. 8 respondent No. 6, respondent No. 5, respondent 4 and respondent No. 3 respectively were 565, 546, 540, 536, 535, 532 and 526. It has been stated before us that the respondent No. 7 (who is also not represented before us) did not appear at the interview at all. Still he is, in my view, entitled to selection as Rule 16(c) forbids fixation of any qualifying marks for viva voce test and it is not suggested by any body before us that there is any rule saying that absence from viva voce test shall disqualify a candidate. I, therefore, bold that the respondent No. 7 has to be preferred over the others. Next come the petitioner and the respondent No. 2 who shall be for the purpose of the present consideration treated as equal. The remaining candidates will be placed below them and order of their merit will be determined by their marks at the written test. The Commission is directed to send a modified recommendation accordingly. If for any other relevant reason, any of these persons is found not fit for selection, or has to suffer any disadvantage, he cannot take advantage of the present judgment in that context. The appointments, if any, made by the State Government on the basis of the impugned parts of the recommendation are also quashed. The appropriate authority shall have to pass fresh orders in this regard in the light of what has been said above. The writ applications are, accordingly, allowed, but in the circumstances without costs.
S.N. Jha, J.
I agree.