# MOHINDER SAIN GARG ETC. ETC v. STATE OF PUNJAB AND ORS

- **Citation:** [1990] Supp. 3 S.C.R. 108
- **Court:** Supreme Court of India
- **Decided:** 1990-11-15
- **Case number:** Civil Appeal Nos. 5329-32 of 1990
- **Bench:** N.M. Kasliwal, M. Fathima Beeyi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohinder-sain-garg-etc-etc-v-state-of-punjab-and-ors-10911
- **Pages:** 30

## Headnote

Civil Service:
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Excise and Taxation Inspectors-Appointment of-Examination-Viva voce-Value and importance of-Fixing 25% of total
marks-Whether arbitrary and excessive-Calling for a large number
of candidates-Whether vitiates selection-Quashing of selectionDesirabi/ity of.
For filling up 47 posts of Excise and Taxation Inspectors in
Punjab, the Chairman, Selection Committee issued an advertisement in
newspaper. The advertisement stated that there would be three written
papers in English, Punjabi and General i-.nowledge of Degree Standard and would carry 100 marks each. Those who obtain 33% in each
paper and 40% in the aggregate were to be called for interview which
would carry 100 marks.
The examination was held and the Selection Committee called
more than 1200 candidates for interview. By the time the Selectio
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commenced the vacancies increased to 54, comprising of 28 posts ot
Taxation Inspectors and 26 posts of Excise Inspectors. After the
interview and selection, all the 54 posts were filled, taking into account
the reservations made for Scheduled Caste, Backward class, Exservicemen, dependents of freedom fighters etc. The appellants who
were unsuccessful in the interview filed a Writ Petition in the High
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Court challenging the procedure adopted by the Selection Committee.
The High Court dismissed the Writ Petitions following two Judgments
of its Full Bench, viz., Joginaer Singh v. State of Haryana, AIR 1966
Punjab & Haryana 339 and Vikram Singh & Ors. v. The Subordinate
Services Selection Board, Haryana & Ors., AIR 1988 Punjab &
Haryana 299. The appellants have preferred the appeals by special
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leave, against the Judgment of the High Court. The Writ Petitioners
have approached this Court direct challenging the selection made.
The appellants and the petitioners contended that since the Selection Committee had called 1200 candidates for interview for only 54
posts, it gave the power of arbitrariness for selection of the candidates.
H It was impossible lo carry out a satisfactory viva voce list if such a large
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M.S. GARG v. STATE OF PUNJAB
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number of candidates were .called for interview. The interview was not
only casual but also superficial and sloppy and the assessment made at
such interviews can never reflect the true measure of the personality of
the candidates. It was also contended that keeping 100 marks for
interview, that is 25 per cent of the total marks, gave arbitrary powers
to the Selection Committee, and hence violative of Article 14 of the
Constitution.
On behalf of the respondents it.was contended that the. Writ Petitions and appeals were not maintainable since all the respond~nts in the
High Court were not impleaded; that since the selected candidates have
already joined the posts such appointments may not be quashed. It was
further contended that the observations made in Ashok Kumar Yadav's
case have no relevance to the present cases since the selection was made
by Departmental Selection Committee and not by Public Service Commission; that all the candidates who had qualified in the written examination had to be called for interview irrespective of the number; that
marks were awarded by the members of selection Committee who
were experts, solely on the basis of the response of candidates and that
no ex~_,.sive marks were awarded to any candidate.
Dismissing the Writ Petitions and one appeal and allowing the
other appeals, this Court,
HELD: 1.1. Ashok Kumar Yadav'8 case was decided in 1985 and
there is no reason why the State of Punjab did not follow the same for
making selections in 1989 for the posts of Excise and Taxation Inspectors. It is no doubt correct that the selection of Taxation and Excise
Inspectors Is done by a Subordinate Selection body and not by Public
Service Commission yet no valid reason has been given as to why that
princij>lQ should not be applied in these cases as well. Even if the said
principle may not in terms apply in these cases to the extent of laying
down 12.

## Text

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MOHINDER SAIN GARG ETC. ETC.
v.
STATE OF PUNJAB AND ORS.
NOVEMBER 15, 1990
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[N.M. KASLIWAL AND M. FATHIMA BEEYI, JJ.]
Civil Service:
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Excise and Taxation Inspectors-Appointment of-Examination-Viva voce-Value and importance of-Fixing 25% of total
marks-Whether arbitrary and excessive-Calling for a large number
of candidates-Whether vitiates selection-Quashing of selectionDesirabi/ity of.
For filling up 47 posts of Excise and Taxation Inspectors in
Punjab, the Chairman, Selection Committee issued an advertisement in
newspaper. The advertisement stated that there would be three written
papers in English, Punjabi and General i-.nowledge of Degree Standard and would carry 100 marks each. Those who obtain 33% in each
paper and 40% in the aggregate were to be called for interview which
would carry 100 marks.
The examination was held and the Selection Committee called
more than 1200 candidates for interview. By the time the Selectio
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commenced the vacancies increased to 54, comprising of 28 posts ot
Taxation Inspectors and 26 posts of Excise Inspectors. After the
interview and selection, all the 54 posts were filled, taking into account
the reservations made for Scheduled Caste, Backward class, Exservicemen, dependents of freedom fighters etc. The appellants who
were unsuccessful in the interview filed a Writ Petition in the High
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Court challenging the procedure adopted by the Selection Committee.
The High Court dismissed the Writ Petitions following two Judgments
of its Full Bench, viz., Joginaer Singh v. State of Haryana, AIR 1966
Punjab & Haryana 339 and Vikram Singh & Ors. v. The Subordinate
Services Selection Board, Haryana & Ors., AIR 1988 Punjab &
Haryana 299. The appellants have preferred the appeals by special
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leave, against the Judgment of the High Court. The Writ Petitioners
have approached this Court direct challenging the selection made.
The appellants and the petitioners contended that since the Selection Committee had called 1200 candidates for interview for only 54
posts, it gave the power of arbitrariness for selection of the candidates.
H It was impossible lo carry out a satisfactory viva voce list if such a large
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M.S. GARG v. STATE OF PUNJAB
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number of candidates were .called for interview. The interview was not
only casual but also superficial and sloppy and the assessment made at
such interviews can never reflect the true measure of the personality of
the candidates. It was also contended that keeping 100 marks for
interview, that is 25 per cent of the total marks, gave arbitrary powers
to the Selection Committee, and hence violative of Article 14 of the
Constitution.
On behalf of the respondents it.was contended that the. Writ Petitions and appeals were not maintainable since all the respond~nts in the
High Court were not impleaded; that since the selected candidates have
already joined the posts such appointments may not be quashed. It was
further contended that the observations made in Ashok Kumar Yadav's
case have no relevance to the present cases since the selection was made
by Departmental Selection Committee and not by Public Service Commission; that all the candidates who had qualified in the written examination had to be called for interview irrespective of the number; that
marks were awarded by the members of selection Committee who
were experts, solely on the basis of the response of candidates and that
no ex~_,.sive marks were awarded to any candidate.
Dismissing the Writ Petitions and one appeal and allowing the
other appeals, this Court,
HELD: 1.1. Ashok Kumar Yadav'8 case was decided in 1985 and
there is no reason why the State of Punjab did not follow the same for
making selections in 1989 for the posts of Excise and Taxation Inspectors. It is no doubt correct that the selection of Taxation and Excise
Inspectors Is done by a Subordinate Selection body and not by Public
Service Commission yet no valid reason has been given as to why that
princij>lQ should not be applied in these cases as well. Even if the said
principle may not in terms apply in these cases to the extent of laying
down 12.5% of the total marks for viva voce test which was made
applicable for selections to be made by V.P.S.C., the percentage of viva
voce test in the present cases at 25% of the total marks is arbitrary and
excessive. There could be no gain saying that viva voce test cannot be
b1tally dispensed with, but taking note of the sitnation and conditions
prevailing in our country, it wonld not be reasonable to have the
percentage of viva voce marks more than 15 per cent of the total marks
in the selection of candidates fresh from college/school for public employment by direct recruitment where the rules provided for a composite ·process
of selection--oamely, written examination and interview. [133G-H; 134A-C]
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SUPREME COURT REPORTS
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1.2. It would be doing injustice to such candidates, who have
already been selected and have joined the posts, to quash their selections even if it is held that 25 per cent marks for viva voce test were
excessively high. [134D-E]
1.3. Thongh it was not proper for the Selection Committee to
have called as mnch as 1200 candidates for selection of 54 posts, the
selection cannot be vitia~ed merely on this ground as such action is not
tainted by any mala fide or oblique motive. The respondents also
stated that they had called all the eligible candidates as the same
practice was followed since 1970 and according to the rules all such
candidates had qualified in the written examination, and had to be
called for interview.
Ashok Kumar Yadav and Ors. etc. etc. v. State of Haryana & Ors.
etc. etc., [1985) Suppl. SCR 657; A. Periakaruppan etc. v. State of
Tamil Nadu & Ors., [1971) 2 SCR 430; Miss Nishi Maghu and Ors. v.
State of J & K & Ors., [1980) 4 SCC 95; Ajay Rasia & Ors. v. Khalid
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Mujib Sehravardi and Ors., [1981) 1 SCC 722; Koshal Kumar Gupta &
Ors. v. State of J & Kand Ors., [1984) 3 SCR 407, relied on.
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State of U.P. v. Rafiquddin and Ors., [1987] Supp. SCC 401;
Mahmood Alam Tariq and Ors. v. State of Rajasthan & Ors., [1988] 3
sec 241; distinguished.
Liladhar v. State of Rajasthan & Ors., [1981] 4 SCC 159, referred
to.
2. Even if the entire selection is quashed and a direction given to
hold the viva voce test afresh by reducing the percentuge of marks, it
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would be a futile exercise so far as the two Writ Petitioners are concerned, as they stood no chance of being selected even remotely.
According to Ashok Kumar Yadav's case candidates should be called
only three times the number of seats available for appointment. If that
criteria was applied then the two Writ Petitioners had absolutely no
chance of being called for interview for the one post of Taxation
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Inspector in the category of backward class. [135C-El.
Ashok Kumar Yadav and Ors. etc. etc. v. State of Haryana & Ors.
etc. etc. [1985] Suppl. SCR 657, referred to.
3.1. In the general category 897 candidates bad appeared in
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interview and so far as one of the four appellants, viz., Rajesh Kumar
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M.S. GARG v. STATE OF PUNJAB
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Saili is· clJncerned, he secured 26 marks in interview and his position
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was 668th. He stood no chance of being called for interview if candidates
upto three times the number of the posts were called for interview. Even
if the percentage of marks in viva voce was reduced from 25 per cent to
15 per cent he stood no chance of selection even remotely. [135G-H)
3.2. The respondents are directed to appoint the other three
appellants belonging to general category on the posts of Taxation
Inspector /Excise Inspector as the case may be, if they are otherwise
found suitable for these posts. It is further made clear that in case
anyone of these appellants has become over-aged during this period,
this would not be considered as a disqualification for their appointment
to the above post. [136G-H; 137-A)
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
5329-32 of 1990.
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From the Judgment and Order dated 21.11.1990 of the Punjab &
Haryana High Court in C.W.P. Nos. 12423, 13188 A, 13537 and 13872
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Writ Petition (Civil) Nos. 719 & 824 of 1990.
(Under Article 32 of the Constitution oflndia).
M.S. Gujral, M.R. Sharma, R.K. Garg, Jagjit Singh, Ms. Kirti
Mishra, Ashok K. Mahajan, Ms. Anjana Sharma, B.P. Singh, Rajiv
Atma Ram, R.C. Kohli, L.K. Pandey, Mahabir Singh, Rana Ranjit
Singh, C.M. Nayar, Prem Malhotra, Ajit Pudussery for B.P. Singh,
and Naresh Bakshi for the appearing parties.
The Judgment of the Court was delivered by
KASLIWAL, J. Special Leave granted.
The above two writ petitions and four civil appeals are disposed
of by one single order as identical questions of law are involved in
these cases. In order to appreciate the contrOversy in these cases we
shall refer to the paper book of civil appeal arising out of S.L.P. (Civil)
No. 14292 of 1989. All the appellants as well as the two petitioners in
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the writ petitions would be referred herein ·as the petitioners.
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SUPREME COURT REPORTS
[ 1990) Supp. 3 S.C.R.
An advertisement was published iri the Tribune (English) on
August 3, 1988 by the office of the Excise and Taxation Commissioner,
Punjab-Chairman Selection Committee, Patiala for appointment to
4 7 posts of Excise and Taxation Inspectors. In the advertisement it was
provided that there will be three written papers of English, Punjabi
and General Knowledge of B.A. standard. Those who get 33 per cent
marks in each paper and 40 per cent marks in aggregate will be called
for interview.. Total marks for the written test were kept at 300 and for
interview 100. Written examination was held in January, 1989 in which
all the petitioners appeared and were also called for interview but they
did not qualify in merit for appointment. It may be further mentioned
that by the time selection process had commenced, the number of
posts were increased to 54. Out of the above petitioners, Charanjit
Singh falls in the category of Backward Class. Out of tlle above 54
posts, 28 posts were for Taxation Inspectors and 26 for Excise
Inspectors. After the interview out of 28 posts of Taxation Inspectors,
15 were filled by candidates of general category, 7 by scheduled castes,
l backward class, 4 exservicemen and 1 sportsman. Out of 26 posts of
Excise Inspectors, 14 were filled out of general category, 6 Scheduled
Castes, 1 backward class, 3 ex-servicemen, 1 sportsman and 1 dependent of freedom fighter. The Selection Committee called more than
1200 candidates for interview for appointments to the above posts.
On a direction given by this Court the respondents produced the
original result sheets of Excise/Taxation Inspectors' Examination,
1989 according to which the petitioners secured the following marks:
Written
Viva Voce
TI
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Mohinder Sain Garg
182.5
32
36
Total
214.5
218.5
Balwinder Singh
176.5
36
39
Total
212.5
215.5
Chiranji Lal Sharma
170.5
37
Total
207.5
Ra jesh Kumar Saili
140
26
Total
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M.S. GARG v. STATE OF PUNJAB [KASLIWAL. J.]
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Davinder Pritpal Singh
Total
Charanjit Singh
Total
129
143.5
68
197
32
175.5
Though the petitioners had made allegations of ma/a fide against
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the Selection Committee but this ground was not sustantiated and· the
petitioners did not press the ground of ma/a fide before us. The four
petitioners who have come before this Court by grant of special leave
had filed writ petitions in. the Punjab and Haryana High Court but the
same were dismissed following full Bench Judgments of that Court in
Joginder Singh v. State of Haryana & Ors., AIR 1966 Punjab & C
Haryana 339 and Vikram Singh and Another v. The Subordinate
Services Selection Board, Haryana and Others, AIR 1988 Punjab and
Haryana 299.
Learned counsel for the petitioners raised two grounds before D
us. The first ground of attack was that though the Selection Committee
had to select 54 candidates but it called more than 1200 candidates for
interview. This action of the Selection Committee gave the power of
arbitrariness for selection of the candidates. It was contended that it
would be impossible to carry out a satisfactory viva voce test if such a
large number of candidates were called for interview. The interview E
was not only casual but also superficial and sloppy and the assessment
made at such interviews can never reflect the true measure of the
personality of the candidate. Reliance in support of the above contention was placed on Ashok Kumar Yadav and Others v. State of
Haryana and Others, AIR 1987 SC454.
The second ground urged before us was that keeping 25 per cent
marks for interview gave arbitrary powers to the Selection Committee.
The selection of the candidates on the basis of such high percentage of
marks for interview was contrary to the provisions of Article 14 of the
Constitution. The respondents filed a counter affidavit before this
Court in which took an objection by way of preliminary submissions
that the petitioners had not impleaded all the respondents in the High
Court as well as before this Hon'ble Court and as such .the writ petitions and appeals were not maintainable. In the counter affidavit filed
in the case of Mohinder Sain Garg it was also averred that all the
vacancies except one stood filled up, appointment letters had been
issued and the selected candidates had joined the posts and as such the
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SUPREME COURT REPORTS
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appointments already made may not be quashed. That the above
mentioned full Bench cases of the Punjab and Haryana High Court
have held that fixation of 28.5 per cent marks for viva voce test were
not arbitrary and the High Court was justified in dismissing the writ
petitions. It was submitted before us that in Ashok Kumar Yadav's
case this Hon 'ble Court was dealing with the appointments made by
the Public Service Commission and as such was setting up norms which
should guide all State Public Service Commissions in discharging their
functions. In the present case the selections have been made by the
Departmental Selection Committee which was chaired by the Commissioner, Excise and Taxation and as such the observations made in
Ashok Kumar Yadav's case have no relevance in the present case. It
was also submitted that all the candidates who had qualified and
cleared the written examination having secured 33 per cent marks in
each paper and 40 per cent in the aggregate had to be called for
interview, irrespective of the number which was more than 1200 in the
present case. It was also submitted in the reply that a decision was
taken by the State of Punjab, Office of the Excise and Taxation Como missioner vide memo No. 4571/ET(V)-70/2247 dated 26.5 1970 for
appointment of Inspectors in the department by direct recruitment.
According to this decision the minimum educational qualification was
kept as graduate and it was also provided that the candidates may be
appointed on the post after taking a test which should comprise of 400
marks in the papers, namely, English-100, General Knowledge-JOO,
E Punjabi-JOO and Interview-100. 1t had also been decided as back as in
1970 that the candidate should obtain minimum of 33 per cent marks in
each paper and only those candidates would be called for interview
who had obtained 70 per cent marks in aggregate. All appointments
starting from 1970 uptil the present one had been made on the above
basis alone. The awarding of marks in viva voce has been left to the
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wisdom of the appointment committee as various things are judged
during the viva voce test such as, candidate's initiative, alertness,
resourcefulness, capacity for clear and logical presentation, effectiveness in decision, effectiveness in meeting, dealing with others, adaptability and judgment, ability to make decision, ability to lead and
intellectual and moral integrity etc. The Members of the Selection
G Board were experts in their respective fields and the Hon'ble High
Court after considering all the points and hearing both the parties
rightly dismissed the petitions in limine. It was denied that the Selection Committee had awarded excessive marks to some candidates \o
bring them high up in the merit list. The marks were awarded on the
basis of interviews conducted by the Selection Committee and the
H response given by the candidates at the time of interview was the sole
criteria of awarding marks.
M.S. GARG v. STATE OF PUNJAB [KASLIWAL, J.]
115
In order to decide the controversy raised before us, it would be
necessary to examine the cases of this Court cited at the bar.
In A. Periakaruppan etc. v. State of Tamil Nadu & Ors., (1971] 2
S.C.R. 430 a Bench of three Judges considered the question of admission to certain medical colleges in the State of Tamil Nadu where 75
marks were kept for interview out of a total marks of 275. It was
observed as under:
"Earmarking 75 marks out of 275 marks for interview as
interview marks prima facie appears to be excessive. It is
not denied that the interview lasted hardly for three minutes for each candidate. In the course of three minutes
interview it is hardly possible to assess the capability of a
candidate. In most cases the first impression need not
necessarily be the best impression. But under the existing
conditions in this country we are unable to accede to the
contention of the petitioners that the system of interview,
as in vogue in this country is so defective as to make it
useless. It is true that various researches conducted in other
countries particularly in U.S.A. show that there is possibility of serious errors creeping in interviews made on
haphazard basis. C.W. Valentine on "Psychology and its
Bearing on Education" refers to the marks given to the
same set of persons interviewed by two different competent
Boards and this is what is stated in his book: "The members
of each board awarded a mark to each candidate and then
he was discussed and an average mark agreed on.
When the orders of merit for the two boards were
compared it was found that the man placed first by Board
A was put 13th by Board B when the man placed !st by
Board B was 11th with Board A".
It was further 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".
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SUPREME COURT REPORTS
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The Court did not accept the contention that the interview marks
were manipulated either by the Government or by the selection
committees.
In Miss Nishi Maghu and Others v. State of J & K and Others,
[1980] 4 S.C.C. 95 the dispute related to the selection of candidates
admitted to the Government Medical College, Jammu for academic
year 1979-80. It was held by a Bench of three Judges:
"That the contention that interview system is not a reliable
test to judge the suitability of a candidate as many uncertain factors were likely to affect the result of the interview,
reflects a legitimate point of view but it is a point of view
only and cannot be taken as the last word on the subject."
It was further held:
"that reserving 50 marks for interview out of 150 (JOO for
written examination and 50 for interview) does seem excessive especially when the time spent was not more than 4
minutes on each candidate. As regards A. Periakaruppan's
case it was observed "when we say this we are not unmindful of the observations in Periakaruppan's case quoted
above, which were made in a somewhat similar but not
altogether identical situation. The finding was recorded
that there was no reliable material before the Court to
prove that there has been discrimination or manipulation
of the interview marks. That being so, and considering the
possible hardship, if the selections were now set aside, to
the students in whose case the validity of the selection cannot otherwise be questioned and who have nearly completed two terms, it would not be proper to annul the entire
selection. However, it is hoped that for future years the
State Government would reduce the percentage of marks
allowed for interview to a reasonable proportion of the
total marks for the selection test".
In Ajay Hasia and Others v. Khalid Mujib Sehravardi and Others,
[1981] 1 S.C.C. 722 a Constitution Bench of Five Judges considered
the writ petitions under Article 32 of the Constitution challenging the
validity of the admissions made to the Regional Engineering College,
Srinagar for the academic year 1979-80. In the above case out of a total
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of 150 marks, 50 marks were kept for interview. The Court considered
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M.S. GARG v. STATE OF PUNJAB IKASL!WAL, J.]
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the question of the validity of viva voce examination as a permissible
test for sectiorr of candidates for admissions to a college. After quoting
passage from the Book on Public Administration in Theory and
Practice by M.P. Sharma and the passage from the book on Public
Personnel Adminstration by 0 I Glenn Stahl the Court observed as
under:
"But, despite all this criticism, the oral interview
method continues to be very much in vogue as a supplementary test for assessing the suitability of candidates
wherever test of personal traits is considered essential. Its
relevance as a test for determining suitability based on
personal characteristics has been recognised in a number of
decisions of this Court which are binding upon us. Reliance
was placed on R. Chitra/ekha v. State of Mysore, [1964] 6
SCR 368; A. Periakaruppan v. State of Tamil Nadu,
(supra) and Ms. Nishi Maghu and Others v. State off & K
and Others case (supra).
It was further observed in the above case:
"the oral interview test is undoubtedly not a very
satisfactory test for assessing and evaluating the capacity
and calibre of candidates, but in the absence of any better
test for measuring personal characteristics and traits, the
oral interview test must, at the present stage, be regarded
as not irrational or irrelevant t~ough it is subjective and
based on first impression, its result is influenced by many
uncertain factors and it is capable of abuse. 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 restored 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".
As regards reserving 50 marks for interview out of a total of 150
it was held that allocating 33.33% of the total marks for oral interview
is plainly arbitrary and unreasonable. It was further observed in this
regard as under:
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"It is significant to note that even for selection of
candidates for the I.A.S., the l.F.S. and the I.P.S., where
the personality of the candidate and his personal characteristics and traits are extremely relevant for the purpose
of selection, the marks allocated for oral interview are 250
as against 1800 marks for the written examination, constituting 12.2% of the total marks taken into consideration
for tl]e purpose of making the selection. We must, therefore, regard the allocation of as high a percentage as
33.33% of the total marks for the oral interview as inflecting the admission procedure with the vice of arbitrariness
and selection of candidates made on the basis of such
admission procedure cannot be sustained".
The Court however did not think it proper in the exercise of its
discretion in setting aside the selections made for the academic year
1979-80 after the lapse of a period of about 18 months, since to do so
would be to cause immense hardship to those students in whose case
the validity of the selection cannot otherwise be questioned and who
have nearly completed three semesters and, moreover, even if the
petitioners are ultimately found to be deserving of selection on the
application of the proper test, it would not be possible to restore them
to the position as if they were admitted for the academic year 1979-80,
which has run out long since. It was held:
"that it is true there is an allegation of ma/a fides against
the Committee which interviewed the candidates and we
may concede that if this allegation were established, we
might have been inclined to interfere with the selections
even after the lapse of a period of 18 months, because the
writ petitions were filed as early as October-November
1979 and merely because the Court could not take up the
hearing of the writ petitions for such a long time should be
no ground for denying relief to the petitioners, if they are
otherwise so entitled. But we do not think that on the material placed before us we can sustain the allegation of ma/a
fides against the committee."
It was further held:
"We may also caution the authorities that though, in
the present case, for reasons which we have already given
we are not interfering with the selection for the academic
M.S. GARG v. STATE OF PUNJAB [KASLIWAL, J.]
119
year 1979-80, the selections made for the subsequent
academic years would run the risk of irivalidation if such a
high percentage of marks is allocated for the oral interview.
We are of the view that, 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".
In Liladhar v. State of Rajasthan & Ors., [1981) 4 SCC 159, a
Bench of three Judges considered the question of selection to
Ra jasthan Judicial Service by written examination as well as oral viva
voce test. The competitive examination. contained two papers in law
carrying JOO marks each and two papers, one in Hindi and the other in
English, each carrying 50 marks and a viva voce examination carrying
JOO marks. Thus in the above case 25% of the total marks were kept
for the viva voce examination. By a writ petition under Art. 32 the
Selection to Rajasthan Judicial Service was sought to be quashed on
several grounds out of which one was the high percentage of viva voce
marks being clearly in violation of the dictum laid down by the Constitution Bench in Ajay Hasia case (supra). A. Periakaruppan and
Ajay Hasia's cases were distinguished on the ground that they were
cases for admission to colleges. It was pointed out that the provision
for marks for interview test need not and cannot be the same for
admission to colleges and entry in to public service. As regards the
words "or even in the matter of public employment" used in Ajay
Hasia' case, it was observed as under:
"'The observations of the Court were made primarily,
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 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 wire, 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
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the interview-test should depend on the requirement of the
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service to which recruitment is made, the source-material
available for recruitment, the composition of the Interview
Board and several like factors."
It may be further mentioned that in this case their Lordships
further considered that both the High Court and the Public Service
Commission were independent bodies, outside executive control,
occupying special positions and enjoying special status under the Constitution and the Rajasthan Judicial Service Rules under consideration
in that case had been made by the Governor of Rajasthan in consultation with the High Court of Rajasthan and the Rajasthan Public
Service Commission. The C6urt in the above case also took into consideration that the interview test in that case was conducted by a body
consisting of a Judge of the High Court, the Chairman and a Member
of the Public Service Commission and a special invitee expert. Court
observed:
"that there can surely be no legitimate grievance of hint of
arbitrariness against this body. Yet another factor worthy
of consideration is that the candidates expected to offer
themselves for selection are not raw graduates freshly out
of college but are persons who have already received a
certain amount of professional training. The source material is such that some weightage must be given to the
interview test and can it possibly be said that twenty five
per cent of the total marks is an exaggerated weightage. We
may add here that it has been made clear by the Chairman,
Rajasthan Public Service Commission on whose behalf a
counter affidavit has been filed before us that the marks
obtained by the candidates at the written examination were
not made available to the members of the Interview Board
either before or at the time of tj)e interview. We are
unhesitating of the view that the selection cannot be struck
down on the ground that more than due weightage was
given to interview test".
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In Koshal Kumar Gupta & Ors. v. State of J & K & Ors., [ 1984] 3
SCR 407 a Bench of three Judges considered the question of legality
and correctness of admissions to Bachelor Degree course for 1982-83
in Regional Engineering College at Srinagar. The challenge was to the
manner, the method and the number of marks assigned to viva voce
test. The allegations were that reservation of 85 marks for written
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M.S. GARG v, STATE OF PUNJAB {KASLIWAL, J.)
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tendency of affecting merit disclosed by the marks obtained at written
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examination. After placing reliance on Ajay Hasia;s case (supra) it was
held:
"that there was nothing Hlegal in keeping 15 marks out of
100 marks for viva voce test". ·
ht Ashok KWlltlT Yadav and Ors. etc. etc."· State of Haryanti lltid Ors.
etc. etc., I 1985) Suppl. SCI< 657 a Bench of four Judges again con·
sidered the question of percentage of marks kept for viva vace examination. In this case Rule 9 clause (l) of the Punjab Civil Service
(Executive Branch) Rules 1930 preseribed a competitive examination
for recruitment to posts in Haryafia Civil Service (executives) and
other allied services. Regulation I iii Appendix i lays down that the
competitive examination shall include compulsory a11d optional subjects and that every candidate shall take all the compulsory subjects
and not mote than three of the optional subjects, provided that ex·
servicemen shall not be required tO appear in the optional subjects. As
per Regulation 5, the compulsory subjects carded in the aggregate 400
marks and there was also viva voce ex.aniinatioli which was compulsory
and which carried 200 marks and .each optional subject carried 100
marks. The result was that the Y(fitten examination ratried an aggregate of 100 marks for candidates in general and for ex-servicemen it
carded an aggregate of 400 marks while in case of both, the Viva .voce
examination carried 200 marks. Regulation 3· provided that no candidate shalt be eligible to appear in the Viva vote test unless he obtained
45% marks irt the aggregate of all subjects including at least 33%
marks in each of the language papers in Hindi and Hindi essay.
In a written examination held by the Haryana Public Service
Commission for recruitment to 61 posts in Haryana Civil Service
(Executive) and other allied services; over LiOO eandidates obtained
more than 45% marks atid thus quaiified for being called for the Viva
voce examination. the Haryana Public S~tvice Commission Invited ali
the candidates for the Viva vtice examination and the interviews lasted
for almost half a year. the fiUriibet of vacancies also rose during the
time taken up in the written examination and the viva. Voce test and
ultimately 119 posts became available for being filled and oti the basis
oftotal marks obtained in the written examination as well as viva voce
test, 119 candidates were selected and recommended by the Hatyana
Public Service Commission to the State GovetnriienL 'The candidaies
who obtained very high marks at the written exaiilination but obtained
poor marks in the viva Voce test atid as such couid not come within first
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l 19 candidates and were consequently not selected filed several writ
petitions in the High Court of Punjab and Haryana challenging· the
validity of the selection of 119 candidates and seeking a writ for quashing and setting aside the same. The State of Haryana, Haryana Public
Service Commission, 3 members of the Haryana Public Service Commission and 5 selected candidates were made respondents in the writ
petitions. Several grounds for challenging the selection were taken but
in the present case we are concerned with the ground that the allocation of 200 marks for the viva voce test out of total of 900 marks for the
generality of students and a total of 600 marks for ex-servicemen was
arbitrary and excessive and it had the effect of distorting the entire
process of selection and accordingly it was unconstitutional as involving denial of equal opportunity in public employment and also the
ground that the number of candidates called for interview were almost
20 times the number of vacancies and this not only imposed an intolerable burden on the Haryana Public Service Commission but also widened the scope for arbitrariness in selection by making it possible for
the Haryana Public Service Commission to boost up or deflate the
total marks which might be obtained by a candidate. The High Court
set aside the selections and directed the Haryana Public Service Commission and the State of Haryana to forthwith declare the result of
candidates of all categories on the basis of written examination alone,
scrupulously excluding all considerations of the viva voce test. The
selected candidates, State of Haryana and three members of the
Haryana Public Service Commission came in appeal to this Court. This
Court held as under (see Headnote 4(i)):
'The Haryana Public Service Commission was not right in
calling for interview all the 1300 and odd candidates who
secure 45% or more marks in the written examination. It is
clear on a plain natural construction of Regulation 3 that
what it prescribes is merely a minimum qualification for
eligibility to appear the viva voce test. Every candidate to
be eligible for appearing at the viva voce test must obtain at
least 45% marks in the aggregate in the written examination. But obtaining of minimum, 45% marks does not by
itself entitle a candidate to insist that he should be called
for the viva voce test. There is no obligation on the
Haryana Public Service Commission to call for the viva
voce test all candidates who satisfy the minimum eligibility requirement. Where there is a composite test consisting
of a written examination followed by a viva voce test, the
number of candidates to be.called for interview in order of
M.S. GARG '· STATE OF PUNJAB ,KASLIWAL, J.J
123
the marks obtained in the written examination should not
exceed twice or at the highest, thrice the number of vacancies to be filled".
In the instant case, the Haryana Public Service Commission could not be said to be actuated by any ma/a fide or
oblique motive in calling for interview all the 1300 candidates because it was common ground between the parties
that this was the practice which was being consistently
followed by the Haryana Public Service Commission over
the years and what was done in this was nothing exceptional. Therefore the selections made by the Haryana
Public Service Commission could not be said to be vitiated
merely on the ground that as many as 1300 and more candidates representing mo.re than 20 times the number of available vacancies were called for interview, though it is not
right course to follow and not more than twice or at the
highest thrice, the number of candidates should have been
called for interview."
See Head Note 5(i)
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"While a written examination assesses the candidate's
knowledge and intellectual ability, a viva voce test seeks to
assess a candidate's overall intellectual and personal quaE
lities. While a written examination has certain distinct
advantages over the viv.a voce test, there are yet no written
tests which can evaluate a candidate's initiative, alertness,
resourcefulness, dependableness, cooperativeness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others,
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adaptability, judgment, ability to make decision, ability to
lead, intellectual and moral integrity. Some of these qualities can be evaluated, perhaps with some degree of error,
by a viva voce test, much depending on the constitution of
the interview board. There can therefore be no doubt that
the viva voce test performs a very useful function in assesG
sing personnel characteristics and traits and in fact, tests
the man himself and is therefore regarded as an important
tool along with the written examination.
See Head Note 5(ii)
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There cannot be any hard and fast rule regarding the pre-
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cise weight to be given to the viva voce 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 voce test is proposed to be entrusted and a host
of other factors. It is essentially a matter of 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 li/adhar's case "exaggerated weight has been
given with proven or obvious oblique motives."
See Head Note 6
So far as candidates in general category are concerned, '
would be prudent and safe to follow the percentage
adopted by the Union Public Service Commission in case of
selection 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 Indian Administrative Service and other allied
services is 12.2, and that has been found to be fair and just,
as striking a proper balance between the written examination and the viva voce test. This Court would therefore
direct that hereafter in case of selections to be made to the
Haryana Civil Service (Executive Branch) and other allied
services, where the competitive examination consists of a
written examination followed by a viva voce test, the marks
allocated for the viva voce test shall not exceed 12 .2% of
the total marks taken into account for the purpose of selection. The Court would suggest that this percentage should
also be adopted by the Public Service Commissions in other
States, because it is desirable that there should be uniformity in the selection process through out the country and
the practice followed by the Union Public Service Commission should be taken as a guide for the State Public Service
Commissions to adopt and follow.