JUDGMENT : C. Mankad, J. Petitioners in both these petitions, who were candidates at the examinations held by the Gujarat Public Service Commission (hereinafter referred to as the Commission), one of the respondents herein, for selection of candidates for appointment to the posts of Executive Engineers in Gujarat Service of Engineers (hereinafter referred to as G.S.E. for short), Class-1, and Deputy Executive Engineers in G.S.E., Class II, have filed these petitions challenging the selection and merit lists of candidates prepared by the Commission, Inter alia, on the ground that the Commission had acted arbitrarily in fixing qualifying or minimum marks for viva voce test. 2. The rules called the Executive Engineers (Civil) Gujarat Service of Engineers, Class-1, Recruitment Rules, 1979 (hereinafter referred to as the Recruitment Rules), have been made by the Governor of Gujarat in exercise of powers conferred on him by Article 309 of the Constitution of India. Rule 4 of the said rules, lays down procedure for appointment by direct selection which is one of the modes of making appointment to the post of Executive Engineer under rule 2. Rule 4 provides that for appointment by direct selection a competitive examination shall be held by the Commission in accordance with the rules mentioned in annexure I appended to the rules. It further provides that the examination shall be common for both the services, namely, G.S.E., Class I and G.S.E., Class II, the result thereof shall be arranged in order of merit of the candidates and appointments to the G.S. E., Class I or Class II, shall be made seriatim from the list of result prepared for the two cadres by the Commission subject to the fulfilment of requirements of physical fitness and other provisions of the rules. The said rule 4 further provides that the qualified candidates securing the highest places in order of merit shall be offered appointments in the G.S.E., Class I, according to the number of vacancies declared for such recruitment to that cadre. The candidates securing the next higher places, in order of merit in the list shall be offered appointments to the G.S.E., Class 11, provided they have indicated their willingness to be so appointed in their applications to the Commission for admission to the examination. The candidates securing the next higher places, in order of merit in the list shall be offered appointments to the G.S.E., Class 11, provided they have indicated their willingness to be so appointed in their applications to the Commission for admission to the examination. Annexure I to the rules contains rules for competitive examination for recruitment to the post of Executive Engineer, G.S.F., Class I (hereinafter referred to as the Examination Rules). Rule I of the Examination Rules lays down that the examination will he held by the Commission on such date and at such places as the Commission may from time to time fix. Rule 2 of the Examination Rules provides that ordinarily all candidates who satisfy the prescribed conditions will be admitted to the examination on submission of such proof of their qualifications and character as the Commission may require. Rule 4 of the Examination Rules is the rule around which controversy involved in these petitions centres. It is, therefore, necessary to read this rule which is as follows : "4. The Commission will fix what should be the qualifying marks in any or all the subjects of the examination and in the total either generally for all candidates or separately for candidates from the scheduled caste/scheduled tribes, socially and educationally backward class including Nomadic and De notified Tribes in respect of vacancies reserved for such candidates and for other candidates, and a candidate shall not be deemed to have qualified in the examination if he fails to obtain the qualifying marks fixed by the Commission in the viva voce and personality test." 3. Petitioners in both these petitions appeared at the examinations held by the Commission under the Examination Rules. L.Y. Ashara, petitioner in Special Civil Application No. 3820 of 1981. appeared at the examination held by the Commission in December 1980. While J. N Patel, petitioner in Special Civil Application No. 5381 of 1983, appeared at the examination held in February 1982. Ashara obtained 463 marks out of 900 in the written test. It appears that the Commission fixed 405 marks as qualifying marks for the written test held in December 1980 and since Ashara had obtained more than the qualifying marks, he was called for viva voce test. Patel obtained 569 marks out of 900 in the written test held in February 1982. It appears that the Commission fixed 405 marks as qualifying marks for the written test held in December 1980 and since Ashara had obtained more than the qualifying marks, he was called for viva voce test. Patel obtained 569 marks out of 900 in the written test held in February 1982. So far as this examination was concerned, the Commission fixed 447 marks as qualifying marks and since Patel had obtained more than the qualifying marks, he was called for viva voce test. Both Ashara and Patel failed to clear the viva voce test. It is not in dispute that in the examinations held under the Examination Rules prior to December 1980, no qualifying or minimum marks were fixed for viva voce test. It was for the first time in December 1980 that the Commission fixed 100 marks out of 200 as qualifying of minimum marks for passing viva voce test. The candidates who failed to obtain minimum 100 marks out of 200 in viva voce test held on and from December 1980 were not selected or recommended for appointment to G.S.E., Class 1, and/or Class II posts by the Commission, irrespective of their performance at the written test. Even the candidates whose performance was outstanding at the written test, was not included in the merit list prepared by the Commission if he failed to obtain minimum marks fixed by the Commission at viva voce test. Ashara obtained 50 marks at viva voce test and thus failed to qualify for inclusion in the merit list. Patel who had obtained 569 marks out of 900 marks at the written test obtained only 90 marks in viva voce test and, therefore, his name was also not included in the list of successful candidates at the examination held in February 1982. Petitioners who appeared at different examinations held under the same rules have challenged the respective merit list prepared by the Commission on identical grounds. Their contentions may be summarised as follows : (1) The Commission has acted arbitrarily in fixing 100 marks out of 200 as minimum or qualifying marks without any basis or reason. Such fixing of qualifying marks has no nexus with the object of the examination. Their contentions may be summarised as follows : (1) The Commission has acted arbitrarily in fixing 100 marks out of 200 as minimum or qualifying marks without any basis or reason. Such fixing of qualifying marks has no nexus with the object of the examination. (2) No minimum or qualifying marks were prescribed for the viva voce test held prior to December 1980 examination and, therefore, the act of the Commission in the prescribing minimum or qualifying marks for viva voce test is arbitrary and discriminatory violative of Articles 14 and 16 of the Constitution of India. (3) Rule 4 of the Examination Rules which confers upon the Commission unfettered and absolute discretion to fix qualifying marks for viva voce test without laying down any policy or guidelines for fixing qualifying marks, is ultra vires Articles 14 and 16 of the Constitution. 4. In the returns filed on behalf of the Commission it is contended that rule 4 empowers the Commission to prescribe qualifying, marks for viva voce and written test and it was in exercise of such power that the Commission fixed 100 marks out of 200 marks as qualifying marks for viva voce test. It was conceded that no such qualifying marks were fixed by the Commission for viva voce test held in January 1980. However, such qualifying standard was fixed for the examinations held in December 1980 and February 1982. It is submitted that since the rules permitted fixing of separate qualifying marks for the written and viva voce tests, fixing of 100 marks out of 200 as minimum or qualifying marks could not be said to be arbitrary or unreasonable. It was also denied that rule 4 of the Examination Rules was ultra vires. 5. When these two petitions were heard, we found that the counter filed by the Commission did not answer many of the matters which call for answer in the case and, therefore, it did not serve any useful purpose. It was not disputed that at the time when applications were invited from candidates by advertisement, the qualifying marks for the examinations had not been fixed by the Commission. It was, therefore, necessary to know on what event the qualifying marks were fixed. Was it after the examination and if it was so, was it after the answer papers were valued. It was, therefore, necessary to know on what event the qualifying marks were fixed. Was it after the examination and if it was so, was it after the answer papers were valued. It was also necessary to clarify as to what had the valuation of answer papers to do with fixing of the qualifying marks and what exactly was the process. We wanted the Commission to clarify whether fixing of qualifying marks depended upon an assessment by the Commission as I to what marks would normally qualify a person to be eligible for the job. It was also found that the qualifying marks for viva voce and personality test were fixed by the Commission from time to time. It was, therefore, found necessary to know whether the qualifying marks were fixed for each selection prior to the invitation or whether they were fixed after the written test but before viva voce or only at the time of the viva voce or personality test. It was pointed out that there was considerable controversy as to the objectivity of assessment at the viva voce test. It was the petitioners' case that failure to obtain 50 per cent marks at the viva yore test entailed the consequence that the candidate is not selected even if be was a brilliant candidate as reflected by the result at the written test. That made the objectivity of viva voce quite important and that obviously had considerable impact on the result of these petitions. There was no material before us to determine whether the method of assessment resorted to was objective or not and whether any rational basis was adopted. We, therefore, by our order, dated 31 July 1984, directed the Secretary of the Commission to file specific details of matters adverted to above. The Secretary was asked to explain how the assessment process and the marking in the assessment process are made. The Commission was also directed to produce relevant record relating to viva voce test including the determination of marks of the individual candidates. 6. In view of the directions given by us by our said order, affidavit of the Secretary of the Commission was filed in both these petitions. In these affidavits it was stated that qualifying marks in the written test were fixed after assessment of answer papers of the candidates. 6. In view of the directions given by us by our said order, affidavit of the Secretary of the Commission was filed in both these petitions. In these affidavits it was stated that qualifying marks in the written test were fixed after assessment of answer papers of the candidates. It was explained that fixing of the qualifying marks depended upon the number of posts to be filled in. For general category ratio of 3 : I was maintained as far as practicable. This ratio was explained by stating that if there were 10 vacant posts, the Commission invited 30 candidates for viva voce test. In other words, the qualifying marks were fixed in such a manner that at least 30 candidates were called for viva voce test for filling in 10 posts. Ratio would vary from year to year taking into consideration the number of posts to be filled in. This ratio did not apply to reserved posts. So far as fixing of qualifying marks for viva voce test was concerned, it was stated that such marks were fixed after the written test and before the viva voce test commenced. It is stated that the Chairman and the Members of the Commission decided the qualifying marks at the time of sitting for viva voce test. After referring to Cl. (c) of rule 6 of the Examination Rules, the Secretary of the Commission has stated that the Chairman and the Members of the Commission arrived at the objective satisfaction of the candidate's performance considering the aspects laid down in Cl. (c). It is stated that no different heads were laid down and no separate allocation of 200 marks was made to different heads for allotment of marks in the viva voce test. The Chairman and the Members in consultation with one another assessed the performance of the candidates at the viva voce test and allocated marks on the basis of the consensus between them. 7. The returns filed on behalf of the Commission make it clear that there is no uniform standard adopted at the examination in question. Qualifying marks at the written and viva voce tests vary from examination to examination. 7. The returns filed on behalf of the Commission make it clear that there is no uniform standard adopted at the examination in question. Qualifying marks at the written and viva voce tests vary from examination to examination. However, since fixing of qualifying marks for the written test is not challenged before us in these petitions, we do not propose to express any opinion in regard to the method of fixing qualifying marks adopted by the Commission for written test. As pointed out above, the controversy involved in these petitions is confined to viva voce test. The Commission departed from its past practice and prescribed minimum or qualifying marks for viva voce test and this has resulted in challenge to the vires of rule 4 of the Examination Rules and the fixing of qualifying marks for viva voce test. It was submitted on behalf of the petitioners that if the action of the Commission fixing qualifying marks for viva voce test is struck down as arbitrary, they would not press other two grounds, namely : (i) that rule 4 is ultra vires ; and (ii) that fixing of qualifying marks departing from past practice results in discrimination violative of Articles 14 and 16 of the Constitution. In other words, it was submitted on behalf of the petitioners that if the Commission was directed to prepare merit list on the basis of aggregate marks obtained by the petitioners at the written and viva voce tests, they would not press other grounds of challenge to merit lists prepared by the Commission. Therefore, the first question which we are called upon to consider is whether the Commission was justified in prescribing 50 per cent of the total marks as qualifying marks for viva voce test in both the examinations in question. 8. Rule 4 of the Examination Rules which we have reproduced above deals with qualifying marks. This rule though not happily worded, clearly empowers the Commission to prescribe qualifying marks, for written as well as viva voce tests. However, on plain reading of the rule it is evident that whereas the rule makes it obligatory on the Commission to prescribe qualifying marks for the written test, so far as viva voce test is concerned, it is left to the discretion of the Commission whether or not to prescribe qualifying marks. However, on plain reading of the rule it is evident that whereas the rule makes it obligatory on the Commission to prescribe qualifying marks for the written test, so far as viva voce test is concerned, it is left to the discretion of the Commission whether or not to prescribe qualifying marks. Words "any or all the subjects of the examination and in total" obviously have reference to subjects and total of written test. This becomes more evident from specific reference to qualifying marks for viva voce test in the latter part of the rule. It is interesting to note that the rule does note lay down that the Commission shall have power or discretion to fix qualifying marks for viva voce. It no doubt confers power of the Commission to fix qualifying marks for for viva voce test but it does so in a rather indirect manner by saying "a candidate shall not be deemed to be qualified in the examination if he fails to obtain the qualifying marks fixed by the Commission." As already observed above, so far as written test is concerned the Commission has to prescribe qualifying marks. In other words, the rule itself casts a duty on the Commission to prescribe qualifying marks for written test. That is not the case with viva voce test. So far as visa voce test in concerned, it is within the discretion of the Commission whether or not to fix qualifying marks. These two different standards adopted by the rule making authority in regard to the two tests, namely, written test and viva voce test bring into focus the relative importance attached to the two tests. If viva voce test was considered as important as written test, the rule itself would have provided for qualifying marks and not left it to the discretion of the Commission. On plain reading of the rule (rule 4), a candidate who obtains qualifying marks in any or the all subjects and in the total fixed by the Commission would be qualified subject to the condition that if he failed to obtain qualifying marks fixed by the Commission for viva voce test he "shall not be deemed to have qualified." The language used in the rule and the manner in which it is framed makes it evident that greater value or weight is attached to written test as compared to viva voce test. It would thus appear that the Commission is not expected to apply the same standard for viva voce test which it applies to written test. At present, we are examining only the question of nature and extent of power or discretion conferred on the Commission to fix qualifying marks for written test and viva voce test without entering into the wider question whether such power or discretion conferred on the Commission without any guidelines is open to challenge. We are examining the question of fixing of the qualifying marks for viva voce test purely on the basis of the language used in rule 4. It may be recalled that the Commission prescribed 100 marks out of total of 200 marks or in other words 50 per cent marks as qualifying marks for viva voce test in both the examinations in question. So far as written tests are concerned, the qualifying marks were not the same. In the examination held in December 1980, 405 marks out of 900 marks were prescribed as the qualifying marks for being eligible to be called for viva voce test. Thus the standard adopted by the Commission was 45 per cent of the total marks for being eligible for viva voce test. So far as the examination held in February 1982 is concerned, the Commission fixed 447 marks out of 900 as the qualifying marks in the written test. In other words, only those candidates who had obtained 447 marks or more were called for viva voce test. It would thus appear that qualifying marks for the written test for February 1982 examination were less than 50 per cent. It would thus appear that the standard adopted for viva voce test and personality test was more stringent than the written test. The qualifying marks for written test at both the examinations in question were less than 50 per cent, whereas the qualifying marks for viva voce test at both the examinations were 50 per cent. Having regard to the provisions of rule 4 of the Examination Rules, we fail to see how the Commission could have fixed higher percentage of qualifying marks for viva voce and personality test. But apart from that, the returns filed on behalf of the Commission do not show the basis for adopting 50 per cent of the total marks as qualifying marks or standard for viva voce test. But apart from that, the returns filed on behalf of the Commission do not show the basis for adopting 50 per cent of the total marks as qualifying marks or standard for viva voce test. What was the object which was sought to be achieved in fixing 50 per cent marks as qualifying marks is not stated in the returns. All that the Secretary of the Commission has stated is that the Chairman and the 14 members of the Commission fixed the qualifying marks for viva voce test before commencement of visa voce test this hardly answers, much less satisfactorily, the question as to why the standard of 50 per cent of total marks was adopted by the Commission. It is not explained as to why the qualifying marks for viva voce test were fixed at 50 per cent when such marks for written test were less than 50 per cent. In other words, we are completely in dark as to the object of fixing 50 per cent of the total marks as qualifying marks. Fixing of qualifying marks for viva voce test is not shown to have any nexus with the object of the examination. The Commission has fixed the qualifying marks arbitrarily without any rationale. We shall presently point out that this arbitrary fixation of qualifying marks has brought about startling results. 9. So far as the examination held in December 1980 is concerned, we find that one P.N. Jain, who obtained the highest marks at the written test obtained 85 marks at viva voce test and consequently failed to find place in the merit list for class I posts. It is stated that if the aggregate of marks obtained in the written as well as viva voce tests is taken into consideration, P.N. Jain would stand at serial (3) of the merit list. Ashara. petitioner in Special Civil Application No. 3820 of 1981, did not find place in the merit list for class I as he obtained only 50 marks at viva voce test. However, had the merit list for class I posts been prepared on the basis of aggregate marks obtained at both the tests, he would have been 7th in the merit list. However, had the merit list for class I posts been prepared on the basis of aggregate marks obtained at both the tests, he would have been 7th in the merit list. In the examination held in February 1982, Patel, petitioner in special Civil Application No. 5381 of 1983, obtained the highest number of marks, namely, 569 marks out of 900 marks in the written test. He, however, obtained only 90 marks in viva voce test and consequently was not selected for class I post. It is submitted that if the aggregate of marks are taken into consideration, Patel would be high-up in the merit list. 10. The above instances demonstrate how irrational and unreasonable the standard adopted by the Commission is. The candidates of outstanding merit whose performance was excellent in the written test have been left out of the merit list for class I posts merely because they did not reach or achieve that standard at viva voce test which they were not expected to achieve even at the written test. The standard adopted by the Commission has resulted in completely ignoring the performance of the candidates at the written test. Selection of candidates has been made dependent upon their performance at viva voce test ignoring their performance at the written test. The candidates applying for class I post were required to be first class Engineering Graduates. In other words, the candidates who had brilliant academic career were competing for class I posts. Candidates like P.N. Jain and Patel proved to be outstanding even amongst such candidates, but unfortunately the Commission did not find them suitable at viva voce test as they failed to obtain the qualifying marks of 50 per cent of the total marks. In absence of any rationale in fixing 50 per cent of the total marks as qualifying marks, the decision of the Commission to fix such qualifying marks cannot be upheld. The decision of the Commission is on the face of it arbitrary. 11. In Shantilal Ambalal Panchal v. State of Gujarat, 1984 G.L.H. 217, this Court has observed that when selection is made to depend on an interview or an oral test the result is quite often suspected by those who do not get selected. The decision of the Commission is on the face of it arbitrary. 11. In Shantilal Ambalal Panchal v. State of Gujarat, 1984 G.L.H. 217, this Court has observed that when selection is made to depend on an interview or an oral test the result is quite often suspected by those who do not get selected. Unlike in the case of written test when selection is based upon or mainly upon interview such a course is open to the charge of absence of that objectivity as is called for in a proper selection. Even so the process of interview for selection is not to be held to be arbitrary since quite often a full assessment of a candidate cannot be made merely on the basis of a written examination. While his intellectual equipment and his thoroughness of study may possibly be better assessed by a written test, assessment of his full personality will be more feasible by a further assessment at an interview. No doubt some element of arbitrariness may be involved in any process of selection based on interview. Nevertheless it may be necessary to resort to interview to get a full and complete picture of the candidate and that will be necessary particularly when question of selection is for appointment to a post requiring certain aptitudes, personality and many other qualities. Qualities such as initiative, resourcefulness, effectiveness in discussion, adaptability and capacity for decision-making could best be adjudged only by a proper assessment made at an interview but observes this Court, the process of assessment must be so meticulously worked out as to make the determination of the result quite objective since otherwise there would be room for much more error of judgment than in an assessment in a written test. This Court observed that while any and every approach to selection by a process of interview will not be upheld by a Court the mode adopted will not be frowned upon by a Court if a proper selecting body adopting a fair and reasonable procedure honestly makes an attempt to assess objectively the qualities required of the candidate in order to satisfy itself. It is further observed that if undue importance is given to the oral test so as to negate effectively the result of the written test the scrutiny of the fairness of procedure involved in the assessment in the oral test will be closer and the assessment of the fairness more rigorous. 12. In the instant case as observed above, undue importance is given to the oral test. If the candidate is unable to obtain qualifying marks at the oral test, then notwithstanding his outstanding performance at the written test he would not be eligible to be included in the merit list. Thus so much importance is given to the viva voce test that it effectively negates the result of the written test. In absence of any basis or rationale in adopting 50 per cent of the total marks as qualifying marks at the viva voce test, it is difficult to hold that the Commission had adopted fair and reasonable standard for making objective assessment for the qualities required of the candidate for being selected for the post in question. Fixing of qualifying marks has no nexus with the examination. We are, therefore, of the view that the action of the Commission in fixing the qualifying marks for viva voce test was arbitrary, unreasonable and unjustified. The Commission, in our opinion, should have in the circumstances disclosed on the facts of the case, prepared the merit list on the basis of aggregate marks obtained by each candidate at the written as well as viva voce test. In the view which we are taking it is not necessary for us to decide other questions raised in these petitions. As observed above, the petitioners do not press other contentions raised in the petitions. 13. It is not possible at this stage to reject the entire selection on the ground that the Commission committed a serious legal error in prescribing qualifying marks at the viva voce test and drawing up merit lists on this impermissible method. It would be equally improper to disturb selection of those who had been selected and appointed on the basis of such merit lists. In our opinion, the ends of justice would be met if the Commission is directed to revise the merit lists in accordance with the directions given hereafter. 14. In the result, both these petitions are allowed. It would be equally improper to disturb selection of those who had been selected and appointed on the basis of such merit lists. In our opinion, the ends of justice would be met if the Commission is directed to revise the merit lists in accordance with the directions given hereafter. 14. In the result, both these petitions are allowed. The Commission is directed to consider the question of inclusion of the petitioners' names in the merit lists on the basis of aggregate of marks in the written as well as viva voce tests ignoring the concept of minimum qualifying marks for viva voce test. If the petitioners are entitled to the inclusion of their names on merits on the basis of aggregate marks, the merit lists shall accordingly be revised and appropriate recommendations shall be made to the State Government. If the petitioners are entitled to appointments to the posts in question on the basis of inclusion of their names in the merit lists, such appointments shall be given to them by the State Government. In such an event, they shall also be given appropriate seniority in accordance with their ranking in the merit lists. In other words, the petitioners shall be placed above those who rank below them in the merit lists in the seniority list of the posts in question. If necessary, they may be given deemed date of appointment without any monetary benefit. 15. Rule made absolute accordingly in each of the petitions with no order as to costs. 16. Gujarat Public Service Commission may carry out its exercise pursuant to the directions of this Court expeditiously but appointments of the petitioners will be only after a period of six weeks.