Sreekanth Sagar vs The Kerala Small Industries Development Corporation Ltd. and Others

A.M. Shaffique, J.—1. This writ petition has been filed challenging Ext. P5 rank list prepared by the 1st respondent, the Kerala Small Industries Development Corporation Limited, for a declaration that the selection and appointment to the post of unskilled labour is vitiated by mala fides and for a direction to respondents 1 and 2 to conduct fresh interview through an external agency and make appointments on the basis of the marks obtained in such interview and written test already conducted.

Facts involved in the case disclose that, based on a notification issued by the 1st respondent inviting applications for appointment to the post of unskilled labour, petitioner also applied and participated in the written test. Ext. P2 is the rank list of 189 candidates, prepared on the basis of the written test. Petitioner was included as Rank No. 13 and the marks obtained by him is 58. A memo was thereafter issued calling him for interview. Petitioner appeared for the interview. After the interview, 1st respondent published two rank lists. One under the general category and the other including reservation categories. Rank list published in the general category is Ext. P4 and the petitioner is Sl. No. 6 in the said rank list.

According to the petitioner, respondents 1 and 2 had committed gross illegality while conducting the interview since 50 marks were assigned for the interview. This, according to the petitioner, is mala fide and intended to select candidates in whom the 1st respondent was interested. According to the petitioner, Ext. P5 is the final rank list of candidates for appointment to the post of unskilled labour and on a perusal of the same, it could be seen that among serial numbers 1 to 13, most of them were given 45% marks. Those candidates who got lesser marks in the written test were given more than 45 marks which had tilted the position in the rank list. This, according to the petitioner, is unreasonable and with an intention to help those persons who did not get sufficient marks in the written test. Hence the writ petition is filed seeking the aforesaid reliefs.

Heard learned counsel for the petitioner and the learned counsel appearing for the contesting respondents.

The Learned counsel for the petitioner relied upon the judgment of the Apex Court in Mohinder Sain Garg v. State of Punjab and Others [, JT 1990 (4) S.C.704] to contend that the Supreme Court had, while considering the question regarding the marks to be given to viva voce, held that granting 25% marks for viva voce test was arbitrary and excessive. It is submitted that the marks given for written test is out of 100 and therefore granting 50 marks for interview would tilt the rank list in favour of any person who obtained lesser marks in the written test. This mischief is sought to be corrected by giving only lesser marks for the interview which shall not be more than 15% of the marks given for written test.

On the other hand, it is argued on behalf of respondents 1 and 2 that the notification was published for inviting applications for the post of unskilled labour. In addition to the efficiency in the written test, they should also qualify in the interview and should be capable of undertaking the unskilled work. It is argued that there is no mandate that the marks in the interview should be 15%, which could vary depending on the facts of each case. It is stated that out of the total marks of 150, 100 marks is for written test and 50 marks for the interview. Therefore 33.3% of the total marks alone is given for interview. Learned counsel for respondents relied upon the following judgments:

"i) Madan Lal v. State of Jammu and Kashmir [, AIR 1995 Supreme Court 1088]. In this case, the issue related to selection of Munsiffs, in which the Supreme Court held at paragraph 16 as under:

"16. In the light of what is stated above, that while dealing with Contention No. 1, this contention also must fail. The petitioners subjectively feel that as they had fared better in the written test and had got more marks therein as compared to concerned selected respondents, they should have been given more marks also at the oral interview. But that is in the realm of assessment of relative merits of concerned candidates by the expert committee before whom these candidates appeared for the viva voce test. Merely on the basis of petitioners'' apprehension or suspicion that they were deliberately given less marks at the oral interview as compared to the rival candidates, it cannot be said that the process of assessment was vitiated. This contention is in the realm of mere suspicion having no factual basis. It has to be kept in view that there is not even a whisper in the petition about any personal bias of the members of the interview committee against the petitioners. They have also not alleged any mala fides on the part of the interview committee in this connection. Consequently, the attack on assessment of the merits of the petitioners cannot be countenanced. It remains in the exclusive domain of the expert committee to decide whether more marks should be assigned to the petitioners or to the concerned respondents. It cannot be the subject-matter of an attack before us as we are not sitting as a court of appeal over the assessment made by the committee so far as the candidates interviewed by them are concerned. In the light of the affidavit-in-reply filed by Dr Girija Dhar to which we have made reference earlier, it cannot be said that the expert committee had given a deliberate unfavourable treatment to the petitioners. Consequently, this contention also is found to be devoid of any merit and is rejected."

ii) Jasvinder Singh v. State of Jammu and Kashmir [, (2003) 2 SCC 132], paragraphs 6 and 7 are relevant which read as under:

"6. This Court in Ashok Kumar Yadav case observed that both written examination and viva voce test are accepted as essential features of proper selection and that there cannot be any hard-and-fast rule regarding the precise weight to be given to the viva voce test as against written examination, which may vary from service to service according to the requirement of that particular service, the minimum qualifications prescribed, the age group from which selection is to be made, the body to which the task of holding the viva voce is entrusted and a host of other factors. It was also observed that all such are essentially matters for determination by experts and it would not be right for the Court to pronounce upon it unless "exaggerated weight has been given with proven or obvious oblique motives". Thereupon while adjudging the issue as to whether the allocation of as high a percentage of marks as 33.3% in case of ex-service officers and 22.2% in case of other candidates, this Court adverted to the pattern of marks and found that the highest marks obtained in the written examination by ex-officers worked out only to a ratio of 22.2% as against the marks obtained in the viva voce worked out to an inordinately high percentage of 76. What was considered to be the vitiating factor was the spread of marks in the viva voce test being enormously large compared to the spread of marks in the written examination leaving room for greater laxity at their command and for arbitrary exercise of the same with so high percentage of 33.3% for viva voce. So far as candidates other than ex-service members viz. the general category are concerned, the percentage of 22.2% was considered to be very high tested by the same standards. Proceeding further as to the question, what should be the proper percentage of marks to be allocated for the viva voce test in such cases, it was observed that marks allocated for the viva voce test shall not exceed 12.2% of the total marks taken into account for the purpose of selection. This Court finally observed therein as follows: (SCC pp. 455-56, para 29)

"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% in case of candidates belonging to the general category and 25% in case of ex-service officers."

In Mehmood Alam Tariq v. State of Rajasthan prescription of 33% as minimum qualifying marks of 60 out of total 180 marks set apart for viva voce examination does not by itself incur any constitutional infirmity. In Manjeet Singh v. ESI Corpn. this Court held that in the absence of any prescription of qualifying marks for the interview test the same 40% as applicable for written examination was reasonable. In Anzar Ahmad v. State of Bihar this Court exhaustively reviewed the entire case-law on the subject including the one in Ashok Kumar Yadav case and upheld a selection method which involved allocation of 50% marks for academic performance and 50 marks for the interview. The very observations in Ashok Kumar Yadav case would go to show that there cannot be any hard-and-fast rule of universal application for allocating the marks for viva voce vis-�-vis the marks for written examination and consequently the percentage indicated therein alone cannot be the touchstone in all cases. What ultimately required to be ensured is as to whether the allocation, as such is with an oblique intention and whether it is so arbitrary as capable of being abused and misused in its exercise. Judged from the above the Division Bench could not be held to have committed any error in sustaining the allocation of 25 marks (20%) for viva voce as against 100 marks for written examination for selection of candidates in the present case. The learned Single Judge, in our view, has adopted a superficial exercise and proceeded on a misunderstanding of the real ratio of the decision in Ashok Kumar Yadav case. Further, the learned Single Judge appears to have applied the ultimate decision in the said case, to the case on hand drawing certain inferences on mere assumptions and surmises or some remote possibilities, without any proper or actual foundation or basis, therefor."

iii) In LIC of India v. Sobha Vijayan [, 1997(1) KLT S.N. 90] the Apex Court held at paragraph 11 as under:

From the above decisions, it can be safely presumed that the awarding of 50 per cent marks for interview is excessive. But that does not necessarily mean that the selection should be set aside. In fact, the learned Single Judge has also not set aside the selection. But the learned Single Judge has given a direction to appoint the petitioners, if anybody who had obtained lesser marks than the petitioners has been appointed."

Though in Mohinder Sain Garg (supra) a particular view has been taken subsequent to the judgment of the Supreme Court as well as Division Bench of this Court did not interfere with a situation where 50% marks were awarded for interview. It will depend upon the facts of each case and when the authorities had fixed certain marks for the purpose of interview in the absence of any proof of mala fides it may not be possible for this Court to interfere with the same. That apart, selection is made for appointing unskilled labour. Therefore the appearance of candidates in the interview and their physical ability to do the work are all factors that requires to be decided by the Committee, in preparing the select list.

In the said circumstances, I do not think that the petitioner is entitled to challenge the rank list and accordingly this writ petition is dismissed.