Vijay Sharma vs State

These writ petitions raise common questions of law and facts, and therefore, they are heard together and decided by a common judgment.

The case of the petitioners is that an advertisement notice was issued by the respondents vide No: AIG(P) 33159219 dated: 20.08.1991,

inviting applications on given proforma from permanent residents of Jammu and Kashmir State for making selection to the posts of SubInspectors

in the Executive Police and the Jammu and Kashmir Armed Police in the pay scale of Rs.12352325. the Prescribed qualification for eligibility was

graduation. The upper age limit was fixed at 28 years and the candidates should have been of not less than 18 years of age on the First day of

January, 1991. In case of Scheduled caste/Scheduled tribe candidates, Exservicemen, and those already in service, the upper age limit was

relaxable by two years. Clause 4 of the advertisement Notice prescribed the following tests:

i) Physical measurement test;

ii) Outdoor test in

a) 100 Metres race = 12.5 sec.

b) 800 Metres race = 2.20 sec.

c) High jump =1.5Mtrs.

d) Long jump =2.20Mtrs.

e) Shot put (7.2 Kg.) = 8.50Mtrs. iii) f) Written test

(g) Vivavoce test

It was laid down in clause ""6"" of the advertisement notice that the candidates found fit in physical measurements will be allowed to compete in

outdoor test and those who qualify as per standards laid down as referred to above, will only be allowed to appear in the written test. The

candidates who would secure 40% marks in written examination only were entitled to be called for viva voce. All the writ petitioners had applied.

Some of them had applied in the reserved categories, for which a provision had been made in the advertisement Notice, and some of them applied

in the General category. After the physical measurement test was conducted, a notice came to be published in newspaper ""DAILY

EXCEULSIOR"" on October 2,1991, whereby the candidates who had been cleared in the Physical measurement test were asked to appear for

physical tests. The names of all the petitioners appeared in the said list. In the meantime, the respondents issued a press release vide No:

DIP/1958/91 dated: 15.10.1991, which was a corrigendum to the original advertisement Notice, by which the standard of physical measurements;

both for male and female candidates, was refixed. The writ petitioners appeared in the physical test. It is admitted that the all the petitioners

qualified the same, and they were called for written test. It is also admitted that the petitioners qualified the written examination, and all of them

were invited for vivavoce test. Respondents No:6 to 10 were members of the Committee who constituted the Selection Board, and they

conducted the interviews of all the candidates including the writ petitioners in all the writ petitions. On 26.11.1992, the respondents issued a list of

111 candidates as having been selected for appointment as Sub Inspectors in the Executive/Armed Police of the State Government. The list was

pasted on the Notice board of Police Headquarters at Jammu. The petitioner's names did not figure in the said list. They filed the present writ

petitions sometime after the list was issued. The selection was challenged through the medium of present writ petitions on various grounds, and only

two grounds were agitated at the time of hearing.

It was contended before this Court that although in the advertisement notice it was not shown as to how many marks wereearmarked for the

written test and how many marks were reserved for the vivavoce test? But the petitioners came to know subsequently that respondents had fixed

25 marks for the interview, which was excessive than 12.2% which has been held to be reasonable by the Supreme Court in case titled: Ashok

Yadav V/s State of Haryana and in case Lila Dhar V/s State of Rajasthan. It was contended before me that 100 marks were fixed for written test

and 25 marks for the interview. If 125 marks are taken as total, earmarking of 25 marks for interview would mean that 20% marks were allocated

for vivavoce which was clearly arbitrary, and that this mischief was made purposely by the respondents, so that the merit of a candidate was

converted into demerit and demerit into merit. The second ground of attack which has been agitated at the time of argument was that the interview

was a mere farce, as candidates in the batch of five were simultaneously interviewed and funny questions were asked from them by the Chairman

of the Selection Board alone. The other four members never asked any question from any candidate. Five candidates in a batch were interviewed

for time ranging from 1 to 3 minutes, and the Chairman put the questions like:

1) What is Hanuman Chalisa?

2) Can you recite Gyatri Mantra?

It was further contended that no separate heads were fixed to adjudge the suitability and personality of the petitioners.

Three sets of objections have been filed; one is on behalf of respondents 1 to 4; another is on behalf of respondents 2 to 10 and the third one is

filed By Shri PL. Gupta, IPS A.I.G. Personnel (respondent NO:5). In the objections filed by respondents 2 to 10, it has been averred that 100

marks each were reserved for written and outdoor tests, and 25 marks were fixed for vivavoce test. So, only 25 marks were reserved for

vivavoce out of a total of 225 marks, which makes it less than 12% marks in the vivavoce. Therefore, it has been averred that there was no

illegality committed. The allegation that funny questions were asked from the petitioners and they were interviewed in a batches of five candidates,

and their interviews lasted for 1 to 3 minutes, has been replied, as under:

h) The averments of ground ( h) is the viva vice test of the candidates was held by the Selection Board headed by the respondent No.2. The

averments made by the petitioners in this para are totally misconveived to cover their low merit secured during the selection process viz. written

test and vivavoce test.

In the second set of objections, in which the affidavit has been sworn by Shri PL.Gupta, IPS A.I.G. (Personnel), the allegations made in the writ

petitions referred to above, have not at all been replied. In the third set of objections, which has been filed by Shri Shesh Paul Vaid, AIG

(personnel) PHQ, the answers to the material allegations have been evaded. Rejoinder has also been filed by the writpetitioners. Since the

controversy in these cases has been narrowed down to two grounds only, therefore, this court will deal only those two grounds while deciding the

writ petitions. During the course of arguments, it was felt necessary to examine the record. The record was summoned. Prom the perusal of

record, it has come to light that 100 marks were reserved for the written examination, 100 marks wee reserved for physical test and 25 marks

were reserved for the vivavoce. All those candidates who passed the physical test were given 100 marks out of 100 marks. This appears to be

reasonable also, because in a service, like the Police Service; either one is physically it or he is unfit. For service in Police Department, a person

cannot be either 50% fit or 70% fit. Therefore, there was no question of allotting any marks under this head, because a person who would not

been hundred percent fit, would not be called for the written examination. The test prescribed for physical fitness, was, as a matter of fact, a

combing process by which those candidates would be combed out who were not physically fit. By allotting 100 marks to such physical tests, only

a camouflage has been tried to be created by the respondents, so that the total marks is taken to be 225. All the selected candidates, as also for

the petitioners herein, who were called for the written examination, have been given 100 marks out of 100 marks in the physical fitness tests.

Therefore, this Court cannot accept the argument of the learned counsel for the respondents that there were 225 marks in all, out of which 25

marks were allocated to the interview. This court shall take that there were only 125 marks, out of which 25 marks were allocated to the interview.

Out of 125 marks, 25 marks constitutes 20% of the total marks.

Now, it shall have to be seen on the touch stone of various judgments of the Apex Court as to whether 20% marks reserved for vivavoce were

excessive and arbitrary. Following judgments have been referred to by the counsel for the parties, in support of their case:

1) AIR 198 ISC page 1779;

2) AIR 1987 SC page 454;

3) AIR 1994 SC page 141;

4) 1991 SCC (Volume I) page 662; and

5) 1991 S.C.C. (Vol. I) page 68.

The latest judgment of the Supreme Court cited by Mr. Kapoor AAG, is titled: Anzar Ahmad V/s State of Bihar reported in AIR 1994 S.C.

page 141, which is a judgment given by two Judges of the Apex Court. This is a case where selection was made on the basis of marks given for

vivavoce and for academic performance. The selection made on the said basis was found by the Supreme Court free from the vice of arbitrariness

and has held that giving equal weight to academic performance, the Commission had rather reduced the possibility of arbitrariness. The counsel for

the respondents submits that even if it is taken that in the present case, 25 marks were reserved for interview out of the total of 125 marks, even

then there is no arbitrariness. The Supreme Court in the case {supra} has dealt with the whole case law pertaining to the controversy in question. I

am of the opinion that the judgment in Ashok Yadav V/s State of Haryana reported in AIR 1987 S.C. page 454, given by a Constitution Bench of

the Supreme Court, still holds the field. While dealing with Ashok Kumar Yadav's case, the Supreme Court in Anzar Ahmad's case (supra) has

found that the principles laid down in that case were not applicable to Anzar Ahmad's case. The Ashok Yadav's case reported in AIR 1987 SC

454, clearly lays down that where the selection is made on the basis of a written test and interview, more than 12.2% marks cannot be allocated

for the interview. While dealing with the issue, the Supreme Court in para ""29"" of the judgment held, as under: ""Now if the allocation of such a high

percentage of marks as 33.3% in case of exservice officers and 22.2% in case of other candidates, for the vivavoce test is excessive, as held by

us, what should be the proper percentage of marks to be allocated for the vivavoce 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 selection to the Indian Administrative Services and other allied Services is 12 1/2% and that has been

found to be fair and just, as striking a proper balance between the written examination and the vivavoce test. We would therefore direct that

hereafter in case of selection 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 via voce test shall not exceed 12.2% of the total marks taken into account for the

purpose of selection. We would suggest that this percentage should also be adopted by the Public Service Commissions in other States, because it

is desirable that there should be uniformity in the selection process throughout the country and the practice followed by the Union Public Service

Commission should be taken as a guide for the State Public Service Commissions to adopt and follow.................................Whatever selections

are made by the Haryana Public Service Commission shall be on the basis that the marks allocated for the vivavoce test shall not exceed 12.2% in

case of candidates belonging to the general category and 25% in case of exservice officers.

The Public Service Commission in this State also makes selection to Kashmir Administrative Service and Kashmir Police Service, If, more

than 12.2% marks cannot be allowed to be earmarked for vivavoce in Kashmir Police Service^ how can it be allowed in the present selections.

The Jammu and Kashmir Public Service Commission is also composed of men of high integrity and expertise, where one can expect and amount of

fairness, while as in the present case, selection has been made not by a Statutory body, but a Committee comprising of Police Officers. If the

Supreme Court has laid down guidelines for Public Service Commissions of the country, where selections are made on the basis of written

examination and also a vivavoce test, and the marks above 12.2% for vivavoce have been held to be excessive, there is no reason for any other

Selection Committee/Board to earmark more than 12.2% marks for vivavoce. Li Anzar Ahmad's case (supra), selection was not made on the

basis of written examination and vivavoce, but on the basis of academic record and performance in interview. Therefore, the law laid down in that

case cannot guide this Court in deciding the present controversy. The controversy raised in the present petitions is squarely covered by Ashok

Yadav's case (supra) it is not necessary for this Court to refer to other judgments.

I have gone through the record. There is a petitioner, namely, Rajinder Kumar, who has got 70 marks in written test but has got only nine

marks in the vivavoce, therefore, he could not be selected. Another petitioner Narinder Singh has secured 69 marks in the written examination and

only ten marks in vivavoce. Petitioner Behari Lai has secured 60 marks in written examination and seventeen marks in vivavoce. Eventually, they

were not selected because the cut off point for selection was fixed at 180 marks. Another candidate, namely, Vivek Suri, had secured 70 marks in

written examination and only eight marks in vivavoce. One of the petitioner's, Kuljit Singh Jamwal, had secured 67 marks in written examination

and only ten marks in vivavoce. From a perusal of select list of general category candidates (prepared on the basis of merit), the respondents 37 to

87 in OWP No: 42/1993 titled: Vijay Sharma and others V/s State and others have secured less than seventy marks in written examination.

Surprisingly, most of them have been given 23 marks out of 25 marks in the vivavoce. Although, they were not even able to get 70% marks in the

written examination, they got above 90% marks in the vivavoce. S/Shri Tariq Ahmad Tak, Abdul Rashid Mir and Parvez Ahmad Dar, who got 67

marks each in the written examination, were given 23 marks each in vivavoce. Similarly, Ajay Kumar, Tahir Kousar Malik, Abdul Hamid Dar and

Mohammad Ismail Shah, S.Manjit Singh, who got only 66 marks each in the written examination, were awarded 23 marks each in the vivavoce

test. It appears from the pattern of marks given in vivavoce, that there was a conscious effort made for bringing some candidates within the

selection zone. Therefore, the said respondents were given marks in such a manner that made total for upto 180 marks, which was the cut off point

fixed for selection. Even 24 marks each out of 25 in vivavoce, were awarded to Ghulam Qadir Khandey, Zahid Hussain Mir, Abdul Rashid Khan

and Shabir Ahmad Shah. Had they obtained 23 marks out of 25 in vivavoce, they would not have got selected. The record discloses a pathetic

situation. Coupled with this, the allegations levelled in the writ petitions by the petitioner with regard to the conduct of interview by the respondents

having not been rebutted, this Court has no option but to believe that the marks were given in the vivavoce for extraneous considerations. The

marks allocated for the vivavoce were excessive and arbitrary, in view of Ashok Yadav's judgment; as they were 20% and interviews having been

conduct in a manner, to which reference has been made hereinabove, it was a fit case for quashing the whole appointments, but since the private

respondents have been working for quite sufficient time, they are equally qualified and physically fit, therefore, it may not be just and appropriate to

quash their selection at this point of time.

Since, I am not inclined to quash the appointments of selected candidates, as it will upset the whole Police department, and the order shall be

harsh for the selected candidates, therefore, I think, that the interests of justice would be met if those writ petitioners are also ordered to be

appointed as SIS in the police department who had secured better or equivalent merit in written examination than the last selected candidate.

Therefore, I direct that all those writ petitioners falling in general category, who had obtained 56 marks or above in the written examination shall be

entitled for appointment as SubInspectors in the Police Department {as the last selected candidate in general category had obtained 56 marks in

the written examination). Similarly, writ petitioner, if any, who belongs to any reserved category and has secured marks equivalent or higher than

the marks obtained in written examination in such a particular category, shall also be entitled for appointment as SubInspector. The respondent

State is directed to appoint all the writ petitioners from the open merit category, who had obtained 56 marks or above in the written examination,

as Sub Inspectors of Police. The State is further directed to appoint all those write petitioners falling in reserved category, who had obtained 56

marks in the written examination, as SubInspectors of Police. The State is further directed to appoint all those writ petitioners falling in reserved

category, who had obtained marks in the written examination equivalent or above than those secured by the last candidate in such a category The

directions of this Court shall be complied with by the official respondents within a period of three months from today.

All the writ petitions are, accordingly, disposed of.