Varia Jayeshkumar Bilindrabhai vs State Of Gujarat & 3 Other(s)

,P.T.Marks,Interview Marks,Total,Rank

Petitioner No.1

Dayaben Desai",26.27,17.5,43.77,87

Petitioner No.2

Priyankabe n Patel",19.17,15.5,34.67,97

Petitioner No.3 Pankaj

Rawal",23.34,16,39.34,46

that Nayana Naik, who replaced Mr.Kathad was also a Ph.D student with Ms.Bhagini Patel and found herself on the expert panel.",,,,

3.6 Mr.Oza, learned Senior Counsel, submitted that no criterion was prescribed for allocation of marks to the candidates for the interview resulting in",,,,

unguided discretion. There was room to favour the candidates in proximity with the experts as more than three times the candidates were called for,,,,

interview as the weightage of interview was 50% in breach of the declaration of law by the Apex Court in various decisions.,,,,

3.7 Mr.Yatin Oza, learned Senior Counsel, relied on the following decisions:",,,,

(I) P.Mohanan Pillai vs. State of Kerala & Ors., reported in AIR 2007 SC 2840 in support of his submission that for unexplained reasons cut off",,,,

marks were lowered as admitted by GPSC in their affidavit-in-reply.,,,,

(II) Krishna Yadav and Another vs. State of Haryana and others., reported in (1994) 4 SCC 165, to submit that when there are serious allegations of",,,,

favouritism, the selection must be set at nought.",,,,

(III) Bishu Biswas and others vs. Union of India and others., reported in (2014) 5 SCC 174 where relying on the decision in the case oAf shok Kumar",,,,

Yadav vs. State of Haryana., (1985) 4 SCC 417, the Supreme Court held that allocation of 22.2% marks for viva-voce was excessive and",,,,

unreasonably high. That marks allotted to the written test as well as oral interviews were same i.e. 50%.,,,,

4 Ms.Manisha Lavkumar, learned Senior Advocate appeared for the GPSC assisted by Shri Chaitanya Joshi, learned advocate. She took the Court",,,,

through the affidavit-in-reply and submitted as under:,,,,

4.1 The petitioners had participated in the preliminary test on the basis of their eligibility for the post and they have not succeeded in the personal,,,,

interview on the basis of their merits as per the result dated 10.05.2018. It is a well settled principal of law that those candidates who take part in the,,,,

selection process knowing fully well the procedure laid down therein are not entitled to question the same after having failed to clear it. Thus the,,,,

petitioners after taking a calculated chance, appearing and participating in the Interview, now cannot turn around and question that the marks allotted",,,,

to them were irrational.,,,,

4.2 The total posts advertised were 39 and instead of three times the candidates, 181 candidates were found eligible for the interview which was done",,,,

for the following reasons:,,,,

a) General (Common) category physically handicapped cutoff was decreased by 10% and therefore one more candidate was found eligible for,,,,

application scrutiny.,,,,

b) General(Women) Category cutoff was decreased and made equal to General (Common) Category and therefore 17 candidates were found eligible,,,,

for application scrutiny.,,,,

c) Scheduled tribe (Common) category cut off was decreased and made equal to General (Common) category and therefore 25 candidates were,,,,

added and as physically handicapped cut-off was decreased by 10%, one more candidate was found eligible for application scrutiny.",,,,

d) Scheduled tribe (Women) category cut-off was decreased and made equal to General (Women) category and therefore 5 candidates were found,,,,

eligible for application scrutiny.,,,,

e) Backward Class (Common) category cut-off was decreased and made equal to General (Common) category and therefore 16 candidates were,,,,

found eligible for application scrutiny.,,,,

f) Scheduled Caste (Women) category cut-off was decreased and made equal to Scheduled Caste (Common) category and therefore 5 candidates,,,,

were found eligible for application scrutiny.,,,,

g) This procedure is in accordance with the Rules and established practice of the Respondent Commission. Further this stipulation is already there in,,,,

the first list of eligible candidates for application scrutiny published on 29.06.2017, wherein in the Notes part of the result at Point No.6 it is",,,,

categorically mentioned that in addition to increasing the number of the candidates in the list, further candidates will be added to the list, who have",,,,

secure equal marks to the marks obtained by the candidate who is last in its respective category. This is a usual procedure and for all the recruitments,,,,

carried out by the Respondent Commission the same is uniformly followed and therefore the apprehension of the Petitioners is absolutely misplaced,,,,

and the allegations of favoritism are mala fide.,,,,

4.3 No marks were allotted by Mr.Rajabhai N. Kathad. Though earlier he was a member of the selection committee, later he was removed from the",,,,

same. He was present in the process of interview, just as a Government Nominee and had the role of an observer only. His presence in any way did",,,,

not affect the evaluation of the candidates.,,,,

4.4 Merely because a person is a guide to some candidate who are pursuing Ph.D that by itself does not establish that there has been any favoritism,,,,

and nepotism.,,,,

4.5 The interview is held in such a way that the identity of the candidate is not revealed before the Interview Committee as provided in Rule 3 (2) (iii),,,,

and Rule 4 (2)(ii) of the Gujarat Public Service Commission Procedure Rules, 1962. Every candidate is assigned a unique code through a draw method",,,,

just before the commencement of the interview and such code becomes the identity of the candidate. The Interview Committee is not provided with,,,,

bio-data or any such personal information of the candidates to be interviewed. Therefore the allegation of the petitioner that there was,,,,

“favoritismâ€​ for the candidates who are pursuing their Ph.D under them and or from their university is absolutely baseless and mala fide.,,,,

4.6 There are several boards of the interview committee which are formed only 10 minutes prior to the interview and thereafter randomly the,,,,

candidates with the unique codes are assigned to the different board of the interview committee through a draw. Thus there is no space for any kind,,,,

of bias against or favoritism in favour of any candidate.,,,,

4.7 The practice followed by the Commission is that each of the Members of the Selection Committee is to assess the performance of the candidates,,,,

by putting questions in respect of the subject relating to the post in question, general knowledge and awareness. The general ability of the candidate in",,,,

respect of presence of mind, ability to present his view point, capacity to analyze the issues, firmness in framing sound opinion, quick and sound",,,,

decision, etc. is assessed. The general overall personality of the candidate to meet the requirement of the post for which the interview is conducted is",,,,

assessed. To make assessment, Commission relies upon the performance of the candidate during personal interview.",,,,

4.8 Since interview is taken for entry into public services, the Interviewing Committee has to keep in view the overall performance of the candidates",,,,

at the oral interview and while doing so their intelligence, general knowledge, personality, aptitude and suitability have to be kept in the centre.",,,,

Therefore, it is not possible to agree with the submission of the petitioner that the members of the interview committee are exercising unguided powers",,,,

to allocate the marks.,,,,

4.9 It is submitted that 38 candidates are already appointed and have joined. They are not joined as parties â€" respondents.,,,,

4.10 Ms.Manisha Shah, learned Senior Advocate, relied on the following decisions:",,,,

(i) Dr.G.Sarana vs. University of Lucknow & Others., reported in (1976) 3 SCC 585.",,,,

(ii) Lila Dhar vs. State of Rajasthan & Ors., reported in (1981) 4 SCC 15 9in support that provisions of marks for interview for admission to college",,,,

and entry in public services cannot be the same.,,,,

(iii) Anzar Ahmed vs. State of Bihar and Ors., reported in (1994) 1 SCC 150 the ratio of 50% need not be sacrosanct.",,,,

(iv) Madan Lal and Ors., vs. State of J&K & Ors., reported in (1995) 3 SCC 48 6â€" An unsuccessful candidate cannot challenge the selection",,,,

process.,,,,

(v) Kiran Gupta and Ors., vs. State of U.P & Ors., reported in (2000) 7 SCC 71 9â€" There can be no omnibus contention that selection on basis of",,,,

viva voce is arbitrary.,,,,

(vi) Manish Kumar Shahi vs. State of Bihar & Ors., reported in (2010) 12 SCC 57 6â€" reiterating the case law in the case of Ashok yadav’s",,,,

case.,,,,

(vii) Ramesh chandra Shah & ors. vs. Amit Joshi & Ors., reported in (2013) 11 SCC 309 â€" One who consciously takes part in the selection process",,,,

cannot then challenge the same.,,,,

(viii) D.Sarojkumari vs. R.Helen Thilakom, reported in (2017) 9 SCC 47 8â€" selection process cannot be challenged having once participated and",,,,

unsuccessful.,,,,

(ix) Dr.kedar Ram Pal vs. U.P Higher Education Services Commission, reported in AIR 1986 SC 59 7â€" Omission of Board to sub-divide in sub-",,,,

heads not obligatory.,,,,

5 In rejoinder, Shri Y.N Oza, relied on the following decisions:",,,,

(I) The Director General, Indian Council of Agricultural Research & Ors., vs. D.Sundara Raji., reported in (2011) 6 SCC 60 â5€" Allocation of 50%",,,,

in viva voce was bad.,,,,

(II) Raj Kumar and others vs. Shakti Raj and others., reported in (1997) 9 SCC 527 â€" when there are glaring illegalities, principles of estoppel has no",,,,

application.,,,,

(III) Bhagwati Prasad vs. Chandramaul, reported in AIR 1966 SC 735 â€" There is evidence on record to suggest bias and nothing more can be",,,,

apparent.,,,,

(IV) Shri Udhav Singh vs. Madhav Rao Scindia., reported in (1977) 1 SCC 511.",,,,

5.1 As far as the factual controversy whether in the case of selection process in the subject of sanskrit is concerned, the Court having considered the",,,,

relevant documents shown by Shri Y.N.Oza, learned Senior Counsel, and opposed by Ms. Manisha Shah, comes to the following reasonings and",,,,

conclusions:,,,,

(A) It is true that Rajabhai Kathad was a member of the Interview Committee on day one and was removed on the subsequent day. That is not,,,,

disputed. The proximity of the candidates namely Komal Bhatt, Hemal Kansagara and Jagmal Vejanand Karangia does not appear to be so vocal to",,,,

suggest bias. From 194 of the petition, what is apparent is that:",,,,

(I) Komal Bhatt was an M.A.student in 2011-2013, did her M.Phil in 2013-2014 and continued her Ph.D from 2016.",,,,

(ii) Hemal Kansagra was an M.A student in 2012-2014. M.Phil in 2014-2015 and Ph.D continued from 01.10.2016.,,,,

(iii) Jagmal Vejanand from 01.01.2012 to 10.10.2016.,,,,

5.2 Moreover, the tabular details shown hereunder reveal that 17 other candidates from Saurashtra University were unsuccessful. The question of",,,,

bias was remote in view of the fact that every candidate was provided a unique code and Boards for interview. Here two Boards were formed ten,,,,

minutes prior to interview. These facts would also negate the possibility in allegations vis-a-vis Arknath Chaudhary and Mayuri Bhatt.,,,,

5.3 The allegations of bias against Arknath Chaudhary and Mayuri Bhatt, from tabular details also stand unsustainable. In case of only two candidates",,,,

the marks of written test were low as 16.8 and 17.41 which itself would not suggest bias in the entire selection where he was an expert. Several other,,,,

candidates from Somnath University and Rashtriya Sanskrit Sansthan, Jaipur, were not selected.",,,,

5.4 In case of Mayuri Bhatia, Jatin Chavda had scored higher marks in P.T too. To suggest an extraordinary tilt to accommodate him by awarding him",,,,

more marks in interview does not find support. Here too, several candidates from the Gujarat University were not selected.",,,,

5.5 There is sufficient explanation to explain the circumstances why more than three times the candidates were called for interview. Merely because,,,,

more than three times the number of candidates were called for, will not by itself suggest that it was so done to give more room for manouverability in",,,,

the interviews.,,,,

5.6 As far as the contention of allotment of marks for viva voce and criteria of marks and submissions on legal principle is concerned, the common",,,,

reasoning would follow after considering the facts in Special Civil Application No. 6788 of 2018.,,,,

Name,Written Marks,Oral Marks,Total,Rank

Hitesh Modi,22.98,27,49.98,15

Hemant Suthar,22.2,27,49.2,16

Prakash Parmar,28.31,18,46.31,19

Abhishek Darji,26.29,20,46.29,20

Raja Ayar,31.14,11,42.14,23

8.2 Moreover, the allegation of proximity merely based on photographs would not in manner substantiate the allegation of bias much less the allegation",,,,

of likelihood of bias.,,,,

9 Based on the other legal contentions raised by respective parties on allotment of viva-voce marks and rejection, what is evident is that though there",,,,

was no sub-division of marks between the members of the interview committee, that itself would not vitiate the selection. As held in the case of",,,,

Keshav Kumar (supra), it is not an absolute sine-qua-non.",,,,

9.1 With regard to the challenge that excessive marks were allotted for the viva-voce test also no rigid test can be laid down. In the case of Lila Dhar,,,,

(supra), the Supreme Court has held as under:",,,,

“6 Thus, the written examination assesses the man’s intellect and the interview test the man himself and “the twain shall meet†for a",,,,

proper selection. If both written examination and interview test are to be essential features of proper selection, the question may arise as to the weight",,,,

to be attached respectively to them. In the case of admission to a college, for instance, 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 life, greater weight has per force to be given",,,,

to performance in the written examination. The importance to be attached to the interview test must be minimal. That was what was decided by this,,,,

Court in etc.Periakaruppan v. State of Tamil Nadu, Ajay Hasia v. Khalid Mujib Sehravardi & ors. Etc., (supra) and other cases. On the other hand, in",,,,

the case of services to which recruitment has necessarily to be made from persons of mature 327 personality, interview test may be the only way,",,,,

subject to basic and essential academic and professional requirements being satisfied. To subject such persons to a written examination may yield,,,,

unfruitful and negative results, apart from its being an act or cruelty to those persons. There are, of course, many services to which recruitment is",,,,

made from younger candidates whose personalities are on the threshold of development and who show signs of great promise, and the discerning may",,,,

in an interview test, catch a glimpse of the future personality. In the case of such services, where sound selection must combine academic ability with",,,,

personality promise, some weight has to be given, though not much too great weight, to the interview test.",,,,

There cannot be any rule of thumb regarding the precise weight to be given. It must vary from service to service according to the requirements of the,,,,

service. The minimum qualifications prescribed, the age group from which the selection is to be made, the body to which the task of holding the",,,,

interview test is proposed to be entrusted and a host of other factors. It is a matter for determination by experts. It is a matter for research. It is not,,,,

for Courts to pronounce upon it unless exaggerated weight has been given with proven or obvious oblique motives. The Kothari Committee also,,,,

suggested that in view of the obvious importance of the subject, it may be examined in detail by the Research Unit of the Union of Public Service",,,,

Commission.,,,,

XXX XXX XXX,,,,

9 Both the cases cited before us Periakaruppan's case and Ajay Hasia's case were cases of admission to colleges. We have already pointed out that,,,,

the provision for marks for interview test need not and cannot be the same for admission to colleges and entry into public services. In fact in,,,,

Periakaruppan's case, even in the case of college admissions the Court observed:",,,,

While we do feel that the marks allotted for interview are on the high side and it may be appropriate for the Government to re-examine the question,",,,,

we are unable to uphold the contention that it was not within the power of the Government to provide such high marks for interview or that there was,,,,

any arbitrary exercise of power"".",,,,

It is true that in Periakaruppan's case the Court held that the non allocation of marks under various heads in the interview test was illegal but that was,,,,

because the instructions to the Selection Committee provided that marks were to be awarded at the interview on the basis of five distinct tests. It was,,,,

thought that the failure to allocate marks under each head or distinct test was an illegality. But, in the case before us, the rule merely and generally",,,,

indicates the criteria to be considered in the interview test without dividing the interview test into distinct, if we may so call them, sub-tests. We do not",,,,

think that Periakaruppan's case, which, as we said, deals with admission to a college, affords any true guidance to us. Ajay Hasia's case was also a",,,,

case of admission to a college. The Court while upholding the interview test as not irrational or irrelevant though unsatisfactory and capable of abuse,",,,,

made the following observation:,,,,

We would, however, like to point out that in the matter of admission of colleges or even in the matter of public employment, the oral interview test as",,,,

presently held should not be relied upon as an exclusive test, but it may be resorted to only as an additional or supplementary test and, moreover, great",,,,

care must be taken to see that persons who are appointed to conduct the oral interview test are men of high integrity, calibre and qualification"".",,,,

The Court then proceeded to consider the next question raised before them, whether the allocation of 33 113 percent of the total marks for the",,,,

interview test vitiated the selection procedure as arbitrary and unreasonable. It was held that it did and reference was made to the fact that even for,,,,

selection of candidates for the Indian Administrative Service the marks allocated for the interview test were only 12.2 percent of the total. It was then,,,,

observed:,,,,

under the existing circumstances, allocation of more than 15% of the total marks for the oral interview would be arbitrary and unreasonable and",,,,

would be liable to be struck down as constitutionally invalid"".",,,,

The observations of the Court were made, primarily 330 in connection with the problem of admission to colleges, where naturally, academic",,,,

performance must be given prime importance. The words ""or even in The matter of public employment"" occurring in the first extracted passage and",,,,

the reference to the marks allocated for the interview test in the Indian Administrative Service examination were not intended to lay down any wide,",,,,

general rule that the same principle that applied in the matter of admission to colleges also applied in the matter of recruitment to public services. The,,,,

observation relating to public employment was per incuriam since the matter did not fall for the consideration of the Court in that case. Nor do we,,,,

think that the Court intended any wide construction of their observation. As already observed by us the weight to be given to the interview test should,,,,

depend on the requirement of the service to which recruitment is made, the source material available for recruitment, the composition of the interview",,,,

Board and several like factors. Ordinarily recruitment to public services is regulated by rules made under the proviso to Art. 309 of the Constitution,,,,

and we would be usurping a function which is not ours, if we try to redetermine the appropriate method of selection and the relative weight to be",,,,

attached to the various tests. If we do that we would be rewriting the rules but we guard ourselves against being understood as saying that we would,,,,

not interfere even in cases of proven or obvious oblique motive. There is none in the present case. The Writ Petition is therefore dismissed but in the,,,,

circumstances there will be no order regarding costs.â€​,,,,

9.2 The principle so enunciated in the case of Anzar Ahmed (supra), reads as under:",,,,

“8. We may now examine the question regarding the validity of the fixation of 100 marks, i.e., 50%, for the interview. The High Court has held the",,,,

same to be arbitrary and has placed reliance on the decisions of this Court. In this context it may be mentioned that the decisions of this Court 155,,,,

with regard to the fixation of marks for interview in a selection broadly fall in two categories:,,,,

(i) Selection for admission to educational institutions; and,,,,

(ii) selection for employment in service.,,,,

The decisions of this Court in R. Chitralekha v. State of Mysore'; A. Peeriakaruppan v. State of TN.2; Nishi Maghu v. State of J & K; Ajay Hasia,,,,

v. Khalid Mujib Sehravardi and Koshal Kumar Gupta v. State of J & K5 relate to admission to educational institutions and fall in the first category. In,,,,

Ajay Hasia case4 it has been laid down that where selection is made on the basis of written test followed by interview, allocation of more than 15% of",,,,

the total marks for interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionally invalid. Although in that,,,,

case the Court was dealing with admission to an educational institution viz., Regional Engineering College, a passing reference has been made to",,,,

public employment"" in the following observation: (SCR p. 106: SCC p. 744, para 18)",,,,

.....We would, however, like to point out that in the matter of admission to college or even in the matter of public employment, the oral interview test",,,,

as presently held should not be relied upon as an exclusive test, but it may be resorted to only as an additional or supplementary test and, moreover,",,,,

great care must be taken to see that persons who are appointed to conduct the oral interview test are men of high integrity, calibre and qualification.""",,,,

In the context of selection for appointment to Public Service, viz., Rajasthan Judicial Service, the question was considered by this Court in Lila",,,,

Dhar v. State of Rajasthan6. Under the relevant rules selection was to be made on the basis of a written examination carrying 300 marks and viva,,,,

voice examination carrying 100 marks. There was thus allocation of 25% of the total marks for viva voice examination. The said allocation was upheld,,,,

as valid. Making a distinction between selection for the purpose of admission to a college and selection for appointment to service, this Court",,,,

(Chinnappa Reddy, J.) has observed: (SCR pp. 326-27: SCC p. 164, para 6)",,,,

...If both written examination and interview test are to be essential features of proper selection, the question may arise as to the weight to be attached",,,,

respectively to them. In the case of admission to a college, for instance, 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 life, greater weight has per force to be given to",,,,

performance in the written examination. The importance to be attached to the interview test must be minimal. That was what was 1 (1964) 6 SCR,,,,

368 : AIR 1964 SC 1823 2 (1971) 1 SCC 38 : (1971) 2 SCR 430 3 (1980) 4 SCC 95 : (1980) 3 SCR 1253 4 (1981) 1 SCC 722: 1981 SCC (L&S) 258:,,,,

(1981) 2 SCR 79 5 (1984) 2 SCC 652: 1984 SCC (L&S) 337 : (1984) 3 SCR 407 6 (1981) 4 SCC 159: 1981 SCC (L&S) 588: (1982) 1 SCR 320 156,,,,

decided by this Court in Peerriakaruppan v. State of 7.N.2; Ajay Hasia v. Khalid Mujib Sehravardi4 and other cases. On the other hand, 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. To subject such persons to a written examination may yield unfruitful and negative,,,,

results, apart from it being an act of cruelty to those persons.""",,,,

Referring to the words ""or even in the matter of public employment"" in the above quoted observation in Ajay Hasia case4 it was stated: (SCR p.",,,,

330: SCC p. 167, para 9) ""...... The observation relating to public employment was per incuriam since the matter did not fall for the consideration of",,,,

the Court in that case. Nor do we think that the Court intended any wide construction of their observation. As already observed by us the weight to be,,,,

given to the interview test should depend on the requirement of the service to which recruitment is made, the source-material available for recruitment,",,,,

the composition of the Interview Board and several like factors.""",,,,

It was further observed in the said decision: (SCR p. 325: SCC p. 163, para 5)",,,,

It is now well recognised that while a written examination assesses a candidate's knowledge and intellectual ability, an interview test is valuable to",,,,

assess a candidate's overall intellectual and personal qualities. While a written examination has certain distinct advantage over the interview 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 decisions,",,,,

ability to lead, intellectual and moral integrity. Some of these qualities may be evaluated, perhaps with some degree of error, by an interview test, much",,,,

depending on the constitution of the interview Board.""",,,,

In Ashok Kumar Yadav v. State of Haryana the selection for the Haryana Civil Service (Executive) and Allied Services was made on the basis of,,,,

written examination and interview. The allocation of marks for interview was 33.3% in the case of ex-service officers and 22.2% in the case of other,,,,

candidates. After quoting the, observations of Chinnappa Reddy, J. in Lila Dhar case6 it has been observed by the Court: (SCR pp. 695-97: SCC pp.",,,,

450-52, paras 23 and 25)",,,,

...... The competitive examination may be based exclusively on written examination or it may be exclusively on 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 i n a given case. ... 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 7 (1985) 4 SCC 417 :,,,,

1986 SCC (L&S) 88: 1985 Supp 1 SCR 657 157 the marks must be minimal so as to avoid charges of arbitrariness, but not necessarily always. There",,,,

may be posts and appointments where the only proper method of selection may be by a viva voice test.,,,,

…... 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. ... There cannot be any hard and fast rule regarding the precise weight to be given to the viva,,,,

voice test as against the written examination. It must vary from service to service according to the requirement of the service, the minimum",,,,

qualification prescribed, the age group from which the selection is to be made, the body to which the task of holding the viva voice 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 Lila Dhar case6 'exaggerated weight",,,,

has been given with proven or obvious oblique motives'.""",,,,

These observations would indicate that the matter of weight to be attached to interview and the allocation of marks for interview vis-a-vis marks,,,,

for written examination can arise when written examination as well as viva voice test are both accepted as essential features of proper selection and,,,,

there also no hard and fast rule regarding the precise weight to be given to the viva voice test as against written examination, can be laid down and the",,,,

said weight must vary from service to service according to the requirement of the service. The question of weight to be attached to viva voice would,,,,

not arise where the selection is to be made on the basis of interview only. In Ashok Kumar Yadav case7 this Court has held that in the case of ex-,,,,

service officers viva voice test may be attached relatively greater weight because the personalities of such 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 voice test. But at the same time the,,,,

Court felt that the allocation of 33.3% marks for viva voice test for ex-service officers and 22.2% for other candidates was excessive and that the,,,,

same should not exceed 25% for ex-service officers and 12.2% for other candidates.â€​,,,,

9.3 The principle is again reiterated in the case of Kiran Gupta (supra), and in the case of Manish Kumar Shahi (supra), the relevant paras (para 22 in",,,,

the case of Kiran Gupta and paras 13 to 16 in the case of Manish Kumar Shahi) read as under:,,,,

“22 It is difficult to accept the omnibus contention that selection on the basis of viva voce only is arbitrary and illegal and that since allocation of,,,,

15% marks for interview was held to be arbitrary by this Court, selections solely based on interview is a fortiori illegal. It will be useful to bear in mind",,,,

that there is no rule of thumb with regard to allotment of percentage of marks for interview. It depends on several factors and the question of,,,,

permissible percentage of marks for an interview test has to be decided on the facts of each case. However, the decisions of this Court with regard to",,,,

reasonableness of percentage of marks allotted for interview in cases of admission to educational institutions/schools will not afford a proper guidance,,,,

in determining the permissible percentage of marks for interview in cases of selection/appointment to the posts in various services. Even in this class,",,,,

there may be two categories: (i) when the selection is by both a written test and viva voce; and (ii) by viva voce alone. The courts have frowned upon,,,,

prescribing higher percentage of marks for interview when selection is on the basis of both oral interview and a written test. But, where oral interview",,,,

alone has been the criteria for selection/appointment/promotion to any posts in senior positions the question of higher percentage of marks for,,,,

interview does not arise. Therefore, we think it an exercise in futility to discuss these cases -- Minor A. Peeriakaruppan etc. Vs. State of Tamil Nadu",,,,

and Ors. [1971 (1) SCC 38] and Ajay Hasia and Ors. Vs. Khalid Mujib Sehravardi and Ors. [1981 (1) SCC 722] -- relied upon by Mr.Goswami,",,,,

which deal with admission to educational institutions/schools and also cases where prescribed method of recruitment was written test followed by,,,,

interview - Ashok Kumar Yadav & Ors. vs. State of Haryana & Ors. [1985 (4) SCC 417;] D.V.Bakshi & Ors. vs. Union of India & Ors. [1993 (3),,,,

SCC 663; Krishan Yadav & Anr. Vs. State of Haryana & Ors.â€​,,,,

“13 Some of the observations made in that judgment are extracted below:,,,,

“20 On a careful consideration of the matter, we are persuaded to the view that the prescription of minimum qualifying marks of 60 (33 percent)",,,,

out of the maximum marks of 180 set apart for the viva voce examination does not, by itself, incur any constitutional infirmity. The principles laid down",,,,

in Ajay Hasia, Lila Dhar, Ashok Kumar Yadav, do not militate against or render impermissible such a prescription. There is nothing unreasonable or",,,,

arbitrary in the stipulation that officers to be= selected for higher services and who are, with the passage of time, expected to man increasingly",,,,

responsible positions in the core services such as the Administrative Services and the Police Services should be men endowed with personality traits,,,,

conducive to the levels of performance expected in such services. There are features that distinguish, for instance, Accounts Service from the Police",,,,

Service â€" a distinction that draws upon and is accentuated by the personal qualities of the officer. Academic excellence is one thing. Ability to deal,,,,

with the public with tact and imagination is another. Both are necessary for an officer. The dose that is demanded may vary according to the nature of,,,,

the service. Administrative and Police Services constitute the cutting edge of the administrative machinery and the requirement of higher traits of,,,,

personality is not an unreasonable expectation.â€​,,,,

14 The same view has been reiterated in Anzar Ahmad v. State of Bihar, P.Mohanan Pillai v. State of Kerala and K.A.Nagamani v. Indian Airlines.",,,,

15 In view of the law laid down in the above mentioned judgments, it must be held that earmarking of 200 marks for viva voce test as against 850",,,,

marks for written examination does not violate the doctrine of equality embodied in Articles 14 and 16 of the Constitution.,,,,

16 We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been,,,,

earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner’s name had",,,,

appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under",,,,

Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of,,,,

the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ,,,,

petition. Reference in this connection may be made to the judgments in Madan Lal v. State of J&K, Marripati Nagaraja v. Govt . Of A.P., Dhananjay",,,,

Malik v. State of Uttaranchal, Amlan Jyoti Borooah v. State of Assam and K.A. Nagamani v. Indian Airlines.â€​",,,,

10 The submission of Shri Y.N.Oza, learned Senior Advocate, that it is open for the petitioners to challenge their non-selection as the selection is",,,,

flawed because of nepotism is also not acceptable. On facts, it has been found that the apprehension of bias pleaded by all the petitioners is not",,,,

substantiated. Therefore, in view of the decision in the case of Manish Kumar Shahi (supra), Dr.G.Sarana (supra), the selection not only cannot be",,,,

challenged on the ground that such an act in the facts has been found to be vitiated. There is also nothing on record to show that the entire selection,,,,

process is vitiated by malafides.,,,,

11 It will be in the fitness of things to reproduce the relevant paras of a decision rendered by this Court in the case of Mahendrakumar Gordhandas,,,,

Prajapati vs. Gujarat Public Service Commission decided on 31.01.2020 in Special Civil Application No. 4290 of 2018 and allied matters. The relevant,,,,

paras read as under:,,,,

“5. Having noticed the facts of the case and the rival contentions, it has to be observed at the outset that the petitions would deserve to be",,,,

dismissed only on the count that the petitioners participated in the selection process and when they failed to be selected, they questioned the process.",,,,

The Supreme Court in several decisions, has held that candidate once having taken a chance by participating in the selection, would be estopped from",,,,

challenging the process and non-selection.,,,,

5.1 The above proposition of law is an oftrepeated principle applied in several cases. In Madan Lal v. State of Jammu & Kashmir [(1995) 3 SCC 486],,,,

the Apex Court observed to hold thus,",,,,

“Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being",,,,

concerned respondents herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up",,,,

to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the concerned Members of the,,,,

Commission who interviewed the petitioners as well as the concerned contesting respondents. Thus the petitioners took a chance to get themselves,,,,

selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance,,,,

both at written test and oral interview, that they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears",,,,

at the interview then, only because the result of the interview is not palatable to him he cannot turn round and subsequently contend that the process of",,,,

interview was unfair or Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla, AIR 1986",,,,

SC 1043, it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioners appeared at the examination without",,,,

protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not",,,,

have granted any relief to such a petitioner.â€​ (Para 8),,,,

5.2 The Apex Court in G. Sarana v. University of Lucknow [(1976) 3 SCC 585] was a case where the petitioner had applied for the post of Professor,,,,

of Anthropology in the University of Lucknow who appeared before the Selection Committee but failed to get the appointment, whereafter he filed a",,,,

petition before the High Court alleging bias against him by three experts in the Selection Committee and questioning the constitution of the Selection,,,,

Committee. The Supreme Court observed that it was not necessary for the court to go into the question of reasonableness of bias or real likelihood of,,,,

bias because the petitioner appeared before the Committee and at the relevant time did not raise any finger against constitution of the Committee. It,,,,

was ruled that petitioner voluntarily appeared before the Committee and took chance of favourable view of the Committee, but when he was not able",,,,

to get the appointment, he turned around his face.",,,,

5.3 Similar principle has been enunciated in Nanak Lal v. Prem Chand Singhvi [AIR 1957 SC 425, ]Prakash Shukla v. Akhilesh Kumar Shukla [1986",,,,

Supp SCC 285], Manish Kumar Shahi v. State of Bihar [(2010 12 SCC 576,] Amlan Jyoti Borooah v. State of Assam [(2009) 3 SCC 227 ]and",,,,

Ramesh Chandra Shah v. Anil Joshi [(2013) 11 SCC 309]. It has been emphasised that the conduct of the petitioner in taking part in the selection,,,,

process would clearly disentitle him from questioning the selection. It was stated that the petitioner invoked jurisdiction of the High Court under Article,,,,

226 of the Constitution of India only after he found that his name did not figure in the merit list prepared by the Commission.,,,,

5.4 In D. Saroj Kumari v. R. Helen Thilakom [2017 (11) SCALE 366, ]the Supreme Court stated the principle the very principle that once a person",,,,

takes part in the process of selection and is not found fit for appointment, such person is estopped from challenging the process of selection. In",,,,

paragraphs 4 and 11 of the judgment, the Apex Court stated, which principle could be readily applied in the facts of the present case, thus, “As far",,,,

as the present case is concerned an advertisement was issued by Respondent No.6 inviting applications for the post of Music Teacher in Samuel LMS,,,,

High School. Respondent No.1 did not raise any objection at that stage that the post could not be filled in by direct recruitment and she should be,,,,

considered for promotion. Not only that, she in fact, applied for the post and took part in the selection process. After having taken part in the selection",,,,

process and being found lower in merit to the appellant, she cannot at this stage be permitted to turn around and claim that the post could not be filled",,,,

in by direct recruitment. The reasoning of the learned Single Judge in rejecting the objection is not in consonance with the law laid down by this Court.,,,,

In view of this we need not go into the other issues raised.â€​ (Para 11),,,,

5.5 D. Saroj Kumari (supra) was followed by the Division Bench of this Court in Gujarat State Road Transport Corporation v. Sisodiya Balbhadrasinh,,,,

Dineshsinh being Letters Patent Appeal No.1487 of 2017 decided on 13th October, 2017 to reiterate the proposition in the following words.",,,,

“Thus, from the aforesaid latest decision rendered by the Hon’ble Supreme Court, it can be said that once a person takes part in the process of",,,,

selection and is not found fit for appointment, the said person is estopped from challenging the process of selection. Thus, we are of the view that the",,,,

petitioners once participated in the OMR examinations without any objection having been failed to secure the minimum qualifying marks/failed to come,,,,

within the zone of consideration, the petitioners are estopped from contending that GSRTC cannot conduct OMR examination in three different",,,,

slots.â€​ (Para 21),,,,

5.6 Only on the above well-settled principle, the petitions would have met the fate of dismissal. However, the dismissal of the petitions is not to rest on",,,,

this ground alone.,,,,

“... as for the petitioner’s allegation that when there are total of 26 seats for general category candidates, the sets reserved for female being",,,,

33% should be 8.58, I state that this approach of the petitioner is incorrect and contrary to policies of the Government. The posts for general category",,,,

female are to be calculated based upon 33% of posts for general category males and accordingly 33% of 15 seats comes to 4.95. The Respondent,,,,

No.2 Government of Gujarat, through the General Administration Department (GAD) has passed a Resolution clarifying that the decimal places",,,,

should be ignored at the time of advertising the posts reserved for female and further that such decimals should be maintained in a register and carried,,,,

forward to the next recruitment process. Therefore, neither the Respondent Government nor the Commission committed any error in advertising 04",,,,

posts for female candidate as the same is in consonance with the revised statement in requisition dated 30.06.2016 as well as Resolution dated,,,,

01.08.2018 passed by the GAD, Government of Gujarat.â€​",,,,

It was a contention canvassed in forefront as main plank of challenge that the separate heads were not provided for giving marks in the interview.,,,,

This submission was sought to be buttressed on the basis of decision of the Supreme Court in Minor A. Peerrikaruppan (supra) the Supreme Court,,,,

distinguished the cases related to the field of education and those in the service realm.,,,,

6.1 In Lila Dhar v. State of Rajasthan [(1981) 4 SCC 159 ]it was explained that the provision of marks for the interview cannot be same in respect of,,,,

the admission to the colleges and for the purpose of entry in the public service. The Apex Court viewed the distinction in the following words,",,,,

“... In the case of admission to a college, for instance, where the candidate’s personally is yet to develop and it is too early to identify the",,,,

personal qualities for which greater importance may have to be attached in later life, greater weight has per force to be given to performance in the",,,,

written examination. The importance to be attached to the interview-test must be minimal. Therefore, the ratio of the decsions in Minor A.",,,,

Peeriakaruppan v. State of Tamil Nadu, (1971) 1 SCC 38 : (AIR 1971 SC 2303) and Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : (AIR",,,,

1981 SC 487), in this regard, cannot be applied in 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.â€​ (Para 6)",,,,

6.2 In Dr. Keshav Ram Pal v. U.P. Higher Education Service Commission, Allahabad [AIR 1986 SC 597 t]he Supreme Court held that the interview",,,,

board was not obliged to sub-divide the marks and in absence of sub-division of marks, the selection for the post of Principal was not rendered",,,,

arbitrary. In yet another decision in Kiran Gupta v. State of Uttar Pradesh [(2000) 7 SCC 791 ]the Court stated while dealing with the selection and,,,,

appointment of the Head Masters in the recognised private aided intermediate colleges and secondary schools that there was on illegality in procedure,,,,

of overall evaluation of the candidate without fixing marks for each of the items. The selection, it was held, was not liable to be held as arbitrary on",,,,

that count.,,,,

6.3 Awarding of lump sum mark without specifying the head by the interview committee could be well viewed as a proper and justified recourse. The,,,,

posts to be filled in public service and not for the admission in colleges or schools. The interview committee would have to keep in mind, while",,,,

selecting the candidates, the overall performance of the candidate in the interview. The qualities of intelligence, general knowledge, personality,",,,,

aptitude and suitability to the post would have to be judged which could be better adjudged by way of cumulative assessment.,,,,

The contention about an influenced marking adopted to the injustice of the socially and educationally backward category candidates, and about",,,,

absence of proper allocation of women candidate in 33% quota may be dealt with. In the affidavit-inreply, the contention that the SEBC category",,,,

candidates were deliberately assigned less marks at the interview could be finally demolished, when the facts were stated that the interview",,,,

committee was not provided with bio-data of any candidate nor provided with the personal information of the candidates to interview. Every candidate,,,,

was assigned a unique code number through a draw method which was undertaken just before commencement of interview. It was on the basis of,,,,

such identity adopted for the candidate, the candidate could be interviewed by the committee. The interview committee therefore would not know that",,,,

a particular candidate belongs to a particular class or category. The petitioner of Special Civil Application No.5075 of 2018 was identified by,,,,

identification “EBEâ€. The method adopted for the interview and the above process would leave no room for any bias. Therefore, the whole",,,,

contention that there was “a subconscious bias against the members of SEBC, stood baseless and factually foundation lessâ€​.â€​",,,,

12 There is, therefore, a clear case where as held in the case of Maheshkumar (supra), the petitioners have not only challenged their non selection",,,,

after participating but also failed to demonstrate that allotment of excessive marks on viva-voce was made.,,,,

Accordingly, all the petitions along with the Civil Application are dismissed.",,,,

(Biren Vaishnav, J)",,,,

Bimal,,,,

FURTHER ORDER,,,,

At this stage, learned advocate for the petitioner Mr.Jit Patel, requests to stay this judgment. The request is rejected.",,,,