JUDGMENT M.P. Menon, J. 1. Members of the Clerical and allied staff of the State Bank of Travancore are eligible for being promoted as officers in the Junior Management Grade. on the basis of written tests and interviews held periodically. The promotions are subject to a "Scheme of reservation" in favour of Scheduled Castes and Scheduled Tribes employees, the quota being 15% and 71/2% respectively. If sufficient number of candidates are not available, Scheduled Castes employees could be promoted into the vacancies reserved for Scheduled Tribes, and vice versa. Similarly, short falls in the reserved quota for a year "should be carried forward for one year to the next, to three subsequent years". Candidates belonging to these two classes are also eligible for relaxation of experience requirements up to one year, for Group C posts. In the written test, the minimum qualifying marks for all others is 40 out of 100, while for SC/ST candidates it is 35; and in the interview, the minimum is 61/2 out of 33 for others, while SC/ST candidates get a relaxation of 10% under the head. The scheme if evidenced by Ext. R1(a) annexed to the counter affidavit of the Bank. 2. The bank proceeded to make a selection in the year 1982, holding the written test in May, and the interview, in October. There was special coaching for S.C./S.T. candidates before the test; and while inaugurating the same the General Manager of the Bank is reported to have stated that as against 66 vacancies available for the two groups, only 44 eligible candidates were available for taking the tests. In the written test only 22 out of the above 44 came out successful. One of the successful candidates could not produce "community certificate", and the remaining 21 were allowed to participate in the interview, and out of these, only 14 got through. This writ petition is filed by the seven who could not make the grade, and the main prayer in the OP is to quash, Ext. P2 select list. 3. The writ Petition catalogues a number of grounds; but the legal arguments were confined at the time of hearing, to the validity and relevancy of "interview" as a permissible standard for selection. But before dealing with this point, it is necessary to mention that two questions of fact were also raised. P2 select list. 3. The writ Petition catalogues a number of grounds; but the legal arguments were confined at the time of hearing, to the validity and relevancy of "interview" as a permissible standard for selection. But before dealing with this point, it is necessary to mention that two questions of fact were also raised. One is that a separate interview for the SC/ST candidates alone, as required by Ext. R1(a), was not held. Another is that the "Interview Board" was prejudiced against those eligible for reservation, and saw to it that as many of the SC/ST candidates as possible did not get through. The material parts of Grounds (B) and (C) read: - "The petitioners were eliminated in the interview in an arbitrary and unreasonable way. Petitioners reasonably apprehend that the Board of Interview was being influenced by prejudices against the Scheduled Castes/Scheduled Tribes candidates. The petitioners were ejected (?) not because they are incompetent but because the appointing authorities used the interview as a method for rejecting them so that few favourites of the management will get the promotion ............ Several irrelevant questions were put in the interview. The petitioners answered these questions correctly. The petitioners felt that the Board members were not at all serious but the entire interview was only a farce." 4. Both these allegations are however stoutly denied in the counter affidavit. It is asserted by the respondents that in order to avoid any comparison with general candidates, a separate interview was arranged for SC/ST candidates and that Dr. N. B. Kamble, Professor and Head, Social Management Unit, Institute for Social and Economic change. Bangalore, himself a member of the Scheduled Castes was one of the members of the interview committee. The seven Petitioners got 4 or 42 marks only out of 33 while even after allowing for 10% relaxation the minimum required for getting selected was 5.85 marks. The bank, its officers, or the Interview Board had no kind of prejudice against the petitioners or other SC/ST candidates. The interview method was part of the process of selection for all classes of candidates' it was never being used to deny persons like petitioners of what was legitimately due to them. 5. I see no reason to disbelieve the Bank's version, as regards the holding of separate interviews. The interview method was part of the process of selection for all classes of candidates' it was never being used to deny persons like petitioners of what was legitimately due to them. 5. I see no reason to disbelieve the Bank's version, as regards the holding of separate interviews. The original records relating to the selection were offered for verification by the bank's counsel, at the time of hearing; in fact I myself suggested to counsel for the petitioners that he too could go through them to find out whether the assertions made in the counter affidavit were either inaccurate or distorted: he was however not disposed to do so. The allegation that the Bank has been using the interview part of the selection process to weed out SC/ST claimants, from the field of competition, is too vague to be acted upon; and if one were to go by the percentages involved in Exts. P2 and P3, what is seen is that while the general average for those who participated in the interview and got qualified was slightly above 67%, the average for SC/ST candidates was 66% Vague allegation about adoption of double standards with ulterior motives cannot easily pass muster, in the face of all these. 6. Now, if the above is the true factual position; where do the petitioners stand? There is no challenge in the OP to the principles of selection or the scheme of reservations; there is no prayer to quash Ext. R.1(a). And if that scheme is to remain untouched, there can be no serious attack against the interview method as such, because that is part of the scheme. The only complaint, in the absence of a challenge to the scheme, can be that its directions have not been observed in the course of making the selection. I have already dealt with the complaints regarding the interviews held, and found them to be devoid of much substance. Under the circumstances, I think the Original petition should fail. 7. Again, having been fully aware of the implications of the selection methods, and having participated in them and taken the chance of getting promoted that way, can the petitioners be now heard to complain that part of the method itself was illegal? Under the circumstances, I think the Original petition should fail. 7. Again, having been fully aware of the implications of the selection methods, and having participated in them and taken the chance of getting promoted that way, can the petitioners be now heard to complain that part of the method itself was illegal? So to suggest is not an attempt to enforce a rule of estoppel (against what the petitioners believe to be constitutional rights of an absolute nature) but only to follow a well established principle governing exercise of discretion by High Courts, under Art.226. The decision in District Wholesale Cooperative Society v. Dy. Registrar ( 1975 KLT 589 ) throws considerable light on the nature of this approach. Dealing with a case of total want of jurisdiction in a Tribunal, which was ordinarily sufficient to vitiate its decision on the principle that consent could not have conferred jurisdiction where none existed, this Court said that its discretion under Art.226 would not be exercised in favour of a person who took the chance of obtaining a favourable decision from it without raising any objection on the point. And if such equitable principles could be pressed into service even in a case of patent lack of jurisdiction, I think the same principle can be applied in a case like the one on hand which was obviously not one of defective jurisdiction. In such cases litigants are denied relief, not because the Court thinks that want of jurisdiction can be overlooked, but because the conduct of the petitioners disentitles them from requesting the Court even to examine the question of jurisdiction. 8. This being a reservation question relating to SC/ST candidates, however, I do not propose to dispose it of on the grounds already considered, without examining the main point raised on merits. And the main contention of the petitioners, as has been seen, is that "interview" is not a permissible method of selection at all, and that all those who were able to get through in the written test should have been included in the select list. But the decisions relied on by counsel do not lay down any such proposition. Soumini v. State Bank of Travancore ILR 1984 (1) Kerala 351 was not a case concerning reservation. But the decisions relied on by counsel do not lay down any such proposition. Soumini v. State Bank of Travancore ILR 1984 (1) Kerala 351 was not a case concerning reservation. The question there was whether a person qualifying in the written test could be excluded from selection if he or she could not qualify in the interview. Chandrasekhara Menon J thought, on the authority of Ajaya Hasia v. Khalid Mujib and others ( AIR 1981 SC 487 ) and Lila Dhar v. State of Rajastan ( AIR 1981 SC 1777 ) that even though the interview method was also permissible to some extent, that could not be allowed to play a decisive role. It cannot play "an overwhelmingly important part" and allowed to become such "a decisive factor as in this case as to disqualify a candidate when he does not get the minimum" it was said. At the same time, his lordship considered that selection on the basis of aggregate marks obtained by the candidate i. e, the total in the written test and interview can be a comparatively safer method of assessment. 9. Before proceeding to examine subsequent decisions of the Supreme Court on the subject it will be useful to notice that in Lila Dhar the Court had drawn a distinction between selection of students for admission to colleges on the one hand, and selection of candidates for the public services from among mature persons, on the other. In the former case, a written test could be more suitable, but that could not invariably be said about the latter, it was pointed out. Said Chinnappa Reddi, J., speaking for the Court: - " .............. in the case of service to which recruitment has necessarily to be made from persons of mature personality, interview test may be only way, subject to basic and essential academic and professional requirements being satisfied. To subject such persons to a written examination may yield unfruitful and negative results, apart from its being an act of cruelty to those persons. There are, of course, many services to which recruitment is made from younger candidates whose personalities are on the threshold of development and who show signs of great promise, and the discerning may in an interview test, catch a glimpse of the future personality. There are, of course, many services to which recruitment is made from younger candidates whose personalities are on the threshold of development and who show signs of great promise, and the discerning may in an interview test, catch a glimpse of the future personality. In the case of such services, where sound selection must combine academic ability with personality and promise, some weight has to be given, though not much too great weight, to the interview test. There cannot be any rule of thumb regarding the precise weight to be given. It must vary from service to service according to the requirements of the service, the minimum qualifications prescribed, the age group from which the selection is to be made, the body to which the task of holding the interview test is proposed to be entrusted and a host of other factors. It is a matter for determination by experts. It is a matter for research. It is not for Courts to pronounce upon it unless exaggerated weight has been given with proven or obvious oblique motives." And towards the concluding part of the judgment, the Court had repeated: - "Ordinarily recruitment to public services is regulated by rules made under the proviso to Art.309 of the Constitution and we would be usurping a function which is not ours, if we try to redetermine the appropriate methods of selection and the relative weight be attached to the various tests. If we do that we would be rewriting the rules but we guard ourselves against being understood assaying that we would not interfere even in cases of proven or obvious oblique motive." 10. The question relating to the proper weightage to be given for interview, where persons are selected for appointment after written and interview tests, again came up for consideration before a Constitution Bench of the Supreme Court, in Asokkumar yadav and others v. State of Haryana and others (1985) 4 SCC 417 ). That was an appeal from a decision of the High Court setting aside the selection made by the Haryana public Service Commission to certain posts in the Haryana Civil Service (Executive) and other Allied Services. That was an appeal from a decision of the High Court setting aside the selection made by the Haryana public Service Commission to certain posts in the Haryana Civil Service (Executive) and other Allied Services. Omitting details which are not relevant for the present, one of the questions was whether the PSC was right in allotting 700 marks for the written test, and 200 marks for interview for the general candidates, and 600 and 200 marks respectively under the same heads for Exservicemen. The High Court held, inter alia, that the allocation of 200 marks for viva voce test was arbitrary and excessive as it introduced a large amount of subjective discretion which subordinated the more objective written test. By referring to a large number of specific examples, the High Court had also found that the area of arbitrariness in the viva voce was so shocking that even a candidate who had failed in the written test could have got selected had he been called for interview. The Supreme Court however did not fully agree with these conclusions; in fact, their lordships reversed the decision, and gave a few guide lines for the future, for the benefit of the various Public Service Commissions in the States, what is more important is that Bhagwati, J. (as he then was) who spoke for the Constitution Bench was in agreement with most of the observations of Chinnappa Reddy J in Lila Dhar. His lordship observed: - "This Court speaking through Chinnappa Reddy, J. pointed out in Lila Dhar v. State of Rajasthan that the object of any process of selection for entry into public service is to secure the best and the most suitable person for the job, avoiding patronage and favouritism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service. So open competitive examination has come to be accepted almost universally as the gateway to public services. But the question is how should the competitive examination be devised? The competitive examination may be based exclusively on written examination or it may be based exclusively on oral interviewer it may be a mixture of both. It is entirely for the Government to decide what kind of competitive examination would be appropriate in a given case. But the question is how should the competitive examination be devised? The competitive examination may be based exclusively on written examination or it may be based exclusively on oral interviewer it may be a mixture of both. It is entirely for the Government to decide what kind of competitive examination would be appropriate in a given case. To quote the words of Chinnappa Reddy, J. "In the very nature of things it would not be within the province or even the competence of the Court and the Court would not venture into such exclusive thickets to discover ways out, when the matters are more appropriately left" to the wisdom of the experts. It is not for the Court to lay down whether interview test should be held at all or how many marks should be allowed for the interview test. Of course the marks must be minimal so as to avoid charges of arbitrariness, but not necessarily always. There may be posts and appointments where the only proper method of selection may be by a viva voce test. Even in the case of admission to higher degree courses, it may sometimes be necessary to allow a fairly high percentage of marks for the viva voce test. That is why rigid rules cannot be laid down in these matters by courts. The expert bodies are generally the best judges. The Government aided by experts in the field may appropriately decide to have a written examination followed by a viva voce test. It is now admitted on all hands that 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 qualities. While a written examination has certain distinct advantages over the viva voce test, there are yet no written tests which can evaluate a candidate's initiative, alertness, resourcefulness, dependable ness, Cooperative ness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others, adaptability, judgment, ability to make decision, ability to lead, intellectual and moral integrity. While a written examination has certain distinct advantages over the viva voce test, there are yet no written tests which can evaluate a candidate's initiative, alertness, resourcefulness, dependable ness, Cooperative ness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others, 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 viva voce test, much depending on the constitution of the interview board." In view of the above authoritative pronouncement followed later in Kesav v. U. P. H. E. S. Commission ( AIR 1986 SC 597 ) also, it cannot be said, as counsel for the petitioners would here contend, that viva voce is a legally impermissible method and that its result should totally have been ignored. 11. Asok Kumar Yadav's case no doubt indicates that where a competitive examination consists of a written examination followed by a viva voce test, the marks allotted for viva voce "shall not exceed 12 2% of the total marks taken into account for purposes of the selection". In respect of exservicemen, "middle aged persons with personalities fully developed", the Court was also of the view that the percentage in viva voce could go up to 25. It is unnecessary to examine whether the selections herein impugned conform to these standards, first because the petitioners have no case at all based on any such considerations, and secondly because there is no challenge to the scheme of selection responsible for allocation of percentages. Further, the tests here were not part of a competitive examination for selection of the best by a comparative assessment of the aspirants; they Were qualifying examinations held for finding out whether the aspirants were having the minimum equipment required for the posts, judged from different angles. It is also possible to think that the candidates concerned here, all aspiring for managerial posts by way of promotion from non managerial ones, after a reasonably long spell of service in the lower cadre, had reached a fair level of maturity and developed their personality to a considerable extent, by the time they were called up for the interview, so that allotment of a minimum of 5.85 marks for interview, out of a total of 40,85 (which works out roughly to 14%), could not be considered as excessive, in the context. 12. It is also significant to note that after holding that the selections made by the Haryana PSC were somewhat vitiated by reason of the excessive weightage given to viva voce, the Supreme court declined to set them aside on the ground that about two year had elapsed after the selection and that the candidates selected had already been appointed. The Rules themselves (which had prescribed the methods and norms of selection) had also been in force for a long time. The same considerations should apply here also. 13. While disposing of Soumini's case ILR (1984) 1 Kerala 351 Chandrasekhara Menon J had given a direction that the petitioner therein should also be selected if the aggregate marks she had obtained had exceeded those of any other person who had already been selected; and Mr. Damodaran for the petitioners suggests that a somewhat similar direction could be given here also. Soumini's it is necessary to repeat, was not a case involving reservation. Is it permissible to equate the petitioners who could pass only one of the tests, with the large majority of others belonging to their own group, who were able to pass both the tests? And what about candidates who might have scored higher total marks than the petitioners, but belonging to other communities, and still not selected for want of minimum qualifying marks at the interview? Again if the object of the two tests was only to ascertain whether the applicants possessed the minimum qualification required for the higher post, can there be a relaxation of such minimum qualification also, so as to totally ignore the needs of efficiency? 14. Reference was made by counsel to the recommendations contained in the 26th Report (78-79) of the Commissioner for Scheduled Castes and Scheduled Tribes, appointed under Art.338 of the Constitution; and one such recommendation (in Para.338) was that the system of interview should be done away with, in the case of SC/ST candidates, where written test and interview are both prescribed for any selection. This is only a recommendation, which cannot bind this Court as does the law laid down by the Supreme Court. Under Art.338, the Special Officer shall report to the President, and the President shall cause it to be placed before each House of Parliament. If the view expressed in Para.3.38 of the Report should be given effect to. This is only a recommendation, which cannot bind this Court as does the law laid down by the Supreme Court. Under Art.338, the Special Officer shall report to the President, and the President shall cause it to be placed before each House of Parliament. If the view expressed in Para.3.38 of the Report should be given effect to. appropriate legislation by Parliament or some other action by a competent authority may be necessary. At any rate, the Report itself indicates that the concerned authorities had found it difficult, for various reasons, to accept all the recommendations made from time to time, by such Reports. Para.3.40, for example, shows that the Government had not been able to persuade the Supreme Court and a large number of High Courts in the country to provide for reservation in the ministerial services of their establishments, as the Chief Justices were of the view that they were even otherwise adequately represented. The university grants Commission had similarly failed to enforce reservation, in many Universities, even up to the level of Lecturers (para 3.48). The Law Ministry was not inclined to agree with the Commissioner's view that it had the competence to provide for reservation in the matter of appointment to the Offices of High Court Judges (para 3.106). And even a suggestion to make a provision for taking disciplinary action against Government employees agitating against or opposing the policy of reservation did not, it is complained, meet with sufficient encouragement from the Department of Personnel and Administrative Reforms (Para 3.142). These and other examples do show that the oppressed and the downtrodden have many more hurdles to cross before they could find themselves seated at the top of many a ladder along with others, but can this aim be reached, by approaching courts and obtaining decrees from them? 15. Art.16(1) of the Constitution provides that there shall be equality of opportunity for all citizens in matters relating to employment to any office under the State. Clause (2) of the Article directs that no citizen shall be discriminated against, in the matter, on the grounds only of religion, race etc. The provision for reservation is to be found in clause (4): "nothing in this Article", it says, shall prevent the State from reserving posts in favour of any backward class of citizens which, in its opinion, is not adequately represented in the services. The provision for reservation is to be found in clause (4): "nothing in this Article", it says, shall prevent the State from reserving posts in favour of any backward class of citizens which, in its opinion, is not adequately represented in the services. A mere reading of these provisions is sufficient to show that there is some conflict between the mandates of clauses (1) and (4): one speaks of equality of opportunity for all citizens, while the other speaks of preferential treatment for certain classes. Now, who are the backward classes of citizens referred to in clause (4)? It has been uniformly held that the Scheduled Castes and Scheduled Tribes do come within the fold, but there has not been so much of uniformity as regards others who could claim to be so included, or on any other question arising under the whole Article. Who is to identify the backward classes? Is it to be done by the executive, or the legislature or the judiciary? What is the test for backwardness? What is the nature and extent of permissible reservation? What exactly does "reservation" mean? Broadly speaking, for about two decades and a half after the coming into force of the Constitution, courts had been construing clause (4) a an exception to the rule of equality in clause (1). "Reservation" was being understood as carving out a comparatively smaller portion of the whole, and ear - marking it for the backward. And "backwardness" was not always to be determined by communal labels along: social, educational and economic backwardness were equally relevant. These views were found reflected in Balaji v. Mysore ( AIR 1963 SC 649 ) and Devadasan v. Union ( AIR 1964 SC 179 ) where the Supreme Court held that reservation, for giving adequate representation, could not be excessive and extravagant, capable of eliminating competition in wide areas, eroding or destroying the general rule of equality in clause (1). creating widespread disaffection among others, and also tending to undermine efficiency contrary to the directions of Art.335. It was held, that including "carry forward", reservation in a year of recruitment could not exceed 50 % of the vacancies. creating widespread disaffection among others, and also tending to undermine efficiency contrary to the directions of Art.335. It was held, that including "carry forward", reservation in a year of recruitment could not exceed 50 % of the vacancies. But in State of Kerala v. N. M. Thomas ( AIR 1976 SC 490 ) the court appeared to move towards a new trend when it reversed a decision of this Court holding that allotment of 34 out of the 51 vacancies in a cadre which arose in a year in a Department of the State Government, in favour of SC/ST candidates, was excessive and bad. There were different strands in the reasoning among the majority of the Bench responsible for the reversal: one of their lordships was of the view that the 50% limit could apply only to the cadre strength of the category in the whole service, and not to the vacancies in a year of recruitment. Another was prepared to hold that clause (4) of Art. 16 was not an exception to clause (1), but was an emphatic declaration about the right for compensatory preferences. Indications were also given that grant of preferences to the backward could never affect the guarantee of equality in clause (1), because the object was to bring up those lagging behind to the level of others and thereby ensure equality. There were however two among the majority who thought that such a carte blanche could not be granted, permitting limitless extension of the power to reserve. Perceptive writers like Galanter Sec "Competing Equalities" by Marc Galanter have expressed the view that the "apparent radicalism" of the decision has two features: - (i) it encourages the pattern of patronage and dependence' visualising the backward classes as passive recipients of governmental largessess : and (ii) it so enlarges the scope of state favour as to generate avoidable opposition to the very concept of compensatory preferences, Distribution of preferences on large scales, thinks the author, has a tendency to perpetuate existing stratifications, accentuate group consciousness, aggravate class tension and encourage abuse of the preference device. As regards Thomas at least it will be too early to assess its consequences in general because the views expressed therein have not become entrenched; in fact there is evidence in subsequent decisions of the court that though not as a matter of arithmetic, setting apart more than 50% of the vacancies in a recruitment year for preferential allotment will be viewed with suspicion. 16. It may probably be safe to assume that the last word on the subject has yet to be said, if at all it is possible to be conclusive in such regions, by the courts and legislatures of the country. So long as the equal opportunity rule of Art.16(1) coexists with the special opportunity rule of clause (4), conflicts are bound to arise, and someone has to go on performing the balancing act when new situations and unforeseen problems arise. And till the legislatures come forward to give sufficient guide lines in areas where doubts are likely to arise, the courts will be called upon, more and more, to play the role of the umpire. The first business of any umpire is to ensure that the game is played according to set rules; but where the umpires themselves have first to lay down the rules, the rules are bound to change with disconcerting frequency. The concept of compensatory discrimination requires a massive and planned redistribution of burdens and benefits so that the victims of past prejudices are protected and those whose forefathers were responsible for perpetuating the prejudices are punished. The identification of the classes to be treated as victims is in itself a difficult process; and even within these classes, there will be conflicts as to who should be the first in the queue for benefits, and what share each group should get. The balancing of these claims will call for extreme dexterity; and so too will be the case with the need to balance these preferential claims with the claims of others who are not entitled for preference. As regards burdens also, questions will arise as to who should bear it, and for how long. To favour one group necessarily involves less justice and freedom for others, and the paradox is complete when grant of preference to some is considered part of a scheme for ensuring equal treatment of all. As regards burdens also, questions will arise as to who should bear it, and for how long. To favour one group necessarily involves less justice and freedom for others, and the paradox is complete when grant of preference to some is considered part of a scheme for ensuring equal treatment of all. Every society has running sores it has to live wish; and ours is no exception, In fact, the problems here are more prodigious. One of the most densely populated countries of the world, contemporary India is beset with conflicts arising from the living together of different ethnic groups, or people with different cultures, religions, languages and dialects. More than 70% of the school going children in the country, they say, drop out before the age of ten, in order to support their family with their labour. Almost half the population live below the poverty line. Growth of unemployment is at an alarming rate. Fissiparous tendencies are becoming more pronounced, and our economy, compared to many other countries, is awfully backward. To cope with all these problems, the State has a stupendous task at the political level. Vast resources, careful coordination, wise fixation of priorities, and the striking of a viable balance between the claims and needs of different sects, castes, groups, classes, areas, states and regions are the real requirements; and the solution to these problems lies in statesmanship, cooperation, commitment to the cause, capacity to give and take, ability to adjust, hard work and sacrifice. The Judges have no Aladdin's lamp with them and their decrees, though capable of creating some ripples at times on a surface which is otherwise deceptively serene, can but touch only the fringe of the gigantic problems involved. Reservation under Art.16(4) is after all only one method a very small one when compared to the other requirements to bring up the backward classes in matters relating to public employment. I dismiss the writ petition hoping that in so discharging my limited function, I am not placing any stumbling blocks in the path of the Scheduled Castes and Tribes, if those with real power at their disposal to take them forward are determined to do so.