J. M. PANCHAL, J. ( 1 ) THIS petition questions legality and validity of Rule 15 of the Gujarat Police Sub-Inspector (Unarmed Male Branch) (Recruitment Examination) Rules 1980 (the Rules for short) made by the Governor of Gujarat in exercise of powers conferred by clause (b) of Section 5 of the Bombay Police Act 1951 Pursuant to an advertisement issued by the Gujarat Public Service Commission (Commission for short) inviting applications for appointment to the post of Police Sub-Inspectors 16509 applications were received by the Commission. The advertisement was issued for filling up 85 vacancies in the cadre of Police Sub-Inspector. All the applicants had to appear at the written test which was to be held on 22/09/1991 At the written test about 15340 candidates appeared. ( 2 ) THE petitioner was also one of the candidates who appeared at the competitive examination held by the Commission. In response to the application of the petitioner the Commission had by a letter dated 1/09/1991 asked the petitioner to appear in the written examination. As per the syllabus prescribed in the Appendix A to the Rules there were three papers namely (1) Gujarati language (2) General Knowledge and Psychological test (objective type) and (3) English and the candidates appearing at the written examination were supposed to get through all the three papers. In all 300 marks were allocated to written test. The petitioner secured 198 marks out of 300. It may be mentioned that the minimum qualifying marks which were prescribed by the Commission were 170 marks out of 300 so far as written test was concerned. As the petitioner was successful in the written examination the petitioner was called for physical endurance test vide a letter dated 22/10/1992 It is an admitted position that physical endurance test was of 100 marks. The petitioner also got through physical endurance test conducted by the Commission by securing 69. 8 marks out of 100. The petitioner therefore was called for viva-voce test with all original certificates. From Appendix A to the Rules it is apparent that viva-voce test carried 50 marks. The Commission had prescribed 18 marks as minimum qualifying marks for the purpose of passing the viva-voce test. The petitioner secured 16 marks out of 50 marks in viva-voce test. The petitioner therefore was called for viva-voce test with all original certificates. From Appendix A to the Rules it is apparent that viva-voce test carried 50 marks. The Commission had prescribed 18 marks as minimum qualifying marks for the purpose of passing the viva-voce test. The petitioner secured 16 marks out of 50 marks in viva-voce test. As the petitioner did not obtain minimum qualifying marks prescribed for viva-voce test his name was not included in the select list prepared by the Commission. ( 3 ) THE petitioner has contended that the action of the respondent in excluding the name of the petitioner from the select list and including the names of other candidates who had obtained less aggregate marks than the petitioner is arbitrary illegal unjust and discriminatory. After stating that the petitioner in aggregate had obtained 303. 2 marks and name of the candidate securing 262 marks in aggregate could not have been included in the select list the petitioner has asserted that prescription of minimum qualifying marks for viva- voce test is bad in law and the respondent should be directed to include name of the petitioner in the select list. The petitioner has claimed that for the appointment to the post of Police Sub-Inspector performance of the candidates at the written test and physical endurance test is the only relevant criteria for the purpose of finding out their suitability or otherwise and prescription of minimum qualifying marks for viva-voce test being violative of provisions enshrined in Articles 14 and 16 of the Constitution of India should be set aside. As per the Courts order dated 14/09/1993 the petitioner was permitted to amend the petition. By way of amendment the petitioner has pleaded that Rule 15 of the Rules which empowers the Commission to fix the qualifying standard for viva-voce test is ultra vires arbitrary illegal unjust and violative of the provision contained in Articles 14 and 16 of the Constitution of India because the said Rule confers arbitrary and unguided powers on the Commission to prescribe minimum qualifying marks for viva-voce test. ( 4 ) IN the premises by filing the present petition under Article 226 of the Constitution of India the petitioner has prayed to issue a writ of mandamus or any other appropriate writ direction or order declaring the action of the respondent in prescribing minimum qualifying marks for the viva- voce test for appointment to the post of Police Sub-Inspector (Unarmed Male Branch) Class-III as arbitrary illegal unjust and without any authority of law. The petitioner has further prayed to quash and set aside the select list prepared by the respondent for the said post and direct the respondent to prepare a fresh select list of successful candidates on the basis of aggregate marks obtained by them in the written test physical endurance test and viva-voce. By way of amendment the petitioner has prayed to declare Rules 15 and 16 of the Gujarat Police Sub-Inspector (Unarmed Male Branch) (Recruitment Examination) Rules 1980 as arbitrary illegal ultra vires the Constitution and therefore null and void. ( 5 ) MR. B. H. Soyantar Deputy Secretary Gujarat Public Service Commission has filed affidavit-in-reply on behalf of the Commission controverting the claim advanced by the petitioner in the petition. After narrating the procedure which was followed by the Commission for selection of candidates it is claimed in the reply-affidavit that the action of the Commission in not including the name of the petitioner in the list of the candidates selected for the said post cannot be said to be illegal or arbitrary as the petitioner had failed to pass the viva-voce test. In the reply-affidavit the deponent has stressed the need for viva-voce test and it is pleaded that a candidate who fails to obtain minimum qualifying marks prescribed for viva-voce test is not entitled to be selected for the post in question. In the reply-affidavit it is asserted that Rule 15 of the Rules is not ultra vires as it does not confer unguided and uncanalized powers on the Commission to prescribe minimum qualifying marks for competitive examination which is required to be held by the Commission for selecting candidates for recruitment to the post of Police Sub-Inspector (Unarmed Male Branch ). Finally in the reply-affidavit it is contended that the petitioner cannot claim that his name should be included in the select list on the basis of aggregate marks secured by him and therefore the petition deserves to be dismissed. Finally in the reply-affidavit it is contended that the petitioner cannot claim that his name should be included in the select list on the basis of aggregate marks secured by him and therefore the petition deserves to be dismissed. ( 6 ) MR. B. H. Soyantar has filed a further affidavit-in-reply dated 11/05/1994 stating the procedure which was followed by the Commission before preparing select list for the recruitment to the post of Police Sub-Inspector (Unarmed Male Branch ). It is claimed in the said affidavit-in-reply that the procedure adopted by the Commission is same since the year 1980 and as the petitioner failed to secure minimum qualifying marks prescribed for viva-voce test his name was not included in the select list. ( 7 ) MS. Bela Yagnik learned Counsel for the petitioner contended that Rule 15 of the Rules confers on the Commission unfettered and unguided powers to fix qualifying standard for viva-voce test which may lead to arbitrary exercise of powers and result into violation of the fundamental rights guaranteed to the candidates who may get through the written test and the physical endurance test and therefore said Rule should be struck down as violative of provisions of Article 14 of the Constitution of India. The learned Counsel submitted that for written test and physical endurance test the manner method and allocation of marks are prescribed in the Rules whereas for viva-voce test no such guidelines are prescribed and as undue importance has been given to the oral test so as to negate effectively the result of written test and physical endurance test Rule 15 of the Rules which leaves no room for scrutiny of fairness of the procedure adopted by the Commission at the time of selection of candidates should be held to be ultra vires the Constitution. Elaborating her arguments learned Counsel for the petitioner submitted that by empowering the Commission to fix minimum qualifying standard for viva-voce test the entire selection is made dependent upon the result of the viva-voce test ignoring the result of written test and physical endurance test and there being all chance of victimisation of a candidate on account of personal bias and prejudice of members conducting interview Rule 15 should be held to be invalid. Lastly it was submitted that the petitioner having secured 283. Lastly it was submitted that the petitioner having secured 283. 8 marks in aggregatte out of 450 marks the action of the Commission in including the names of the candidates who had secured less aggregate marks should be set aside and the Commission should be directed to prepare a fresh select list of successful candidates on the basis of aggregate marks obtained by them in the written test physical endurance test and viva-voce test held by the Commission for the said post. In support of her submission learned Counsel has placed reliance on the decisions rendered in the cases of (1) Ashok Kumar Yadav and Ors. v. State of Haryana and Others A. I. R. 1987 S. C. 454 (2) L. V. Ashara v. Gujarat Public Service Commissioner and Another Special Civil Application No. 3820/81 and (3) Jayantilal N. Patel v. Gujarat Public Service Commission and Others Special Civil Application No. 5381/83 decided on 5/11/1984 (Coram: P. S. Poti C. J. and R. C Mankad J. as he then was ). ( 8 ) MR. Anil R. Dave learned Counsel for the respondent-Commission submitted that prescription of minimum qualifying marks for the competitive examination to be held by the Commission for selecting candidates for recruitment to the post of Police Sub-Inspector (Unarmed Male Branch) is provided in the Rules and therefore the action of the Commission in prescribing minimum qualifying marks to be obtained by a candidate at the competitive examination cannot be said to be arbitrary or illegal in any manner. It was submitted that out of total 450 marks only 50 marks have been assigned to viva-voce test and a candidate to qualify for being selected to the post in question is required to obtain minimum 18 marks in viva-voce test and thus the percentage of minimum qualifying marks prescribed by the Commission is not arbitrary and the petitioner is not entitled to claim any reliefs prayed for in the petition. It was further submitted that Rule 15 of the Rules does not confer unguided unfettered and uncanalised powers on the Commission to prescribe minimum qualifying marks for the competitive examination and therefore Rule 15 of the Rules being intra vires the action of the respondent should be upheld by the Court. It was further submitted that Rule 15 of the Rules does not confer unguided unfettered and uncanalised powers on the Commission to prescribe minimum qualifying marks for the competitive examination and therefore Rule 15 of the Rules being intra vires the action of the respondent should be upheld by the Court. In support of his submissions learned Counsel for the respondent has placed reliance on the decisions rendered in the cases of (1) Mehmood Alam Tariq and Others v. State of Rajasthan and Others. A. I. R. 1988 S. C. 1451 and (2) Abid Asghar v. State of Bihar and Others (1994) 1 S. C. C. 151. ( 9 ) BEFORE deciding the question whether Rule 15 of the Rule is ultra vires it would be necessary to note certain salient features of the Rules. ( 10 ) IN exercise of powers conferred by clause (b) of Section 5 of the Bombay Police Act 1951 (Bom. XXII of 1951) and in supersession of all orders in force the Governor of Gujarat has made Rules known as Gujarat Police Sub-Inspectors (Unarmed Male Branch) (Recruitment Examination) Rules 1980 Rule 2 of the Rules defines certain words. As per the definition clause Appendix means Appendix appended to the Rules whereas Commission means Gujarat Public Service Commission. Rule 3 enjoins a duty upon the Commission to hold a competitive examination for selecting candidates for requirement to the post of Police Sub-Inspector (Unarmed Male Branch ). Rule 5 lays down that the subject and standard of the examination shall be specified in Appendix-A whereas as per the requirements of Rule-6 a candidate has to appear at the written examination physical endurance test and viva-voce. Rule 11 prescribes qualifications which a candidate must possess for the post of Police Sub-Inspector (Unarmed Male Branch. Rule 15 of the Rules which is challenged in the petition and which empowers the Commission to fix minimum qualifying marks to be obtained by candidates at the competitive examination reads as under :15 The Commission shall fix qualifying standard in written test for all candidates including the candidates belonging to the reserved categories. Only those candidates who satisfy the qualifying standards fixed by the commission shall be called for physical endurance Test. Those candidates who have successfully passed the Physical endurance test will be called for viva-voce test. The Commission shall fix a separate qualifying standard in respect of the viva-voce test. Only those candidates who satisfy the qualifying standards fixed by the commission shall be called for physical endurance Test. Those candidates who have successfully passed the Physical endurance test will be called for viva-voce test. The Commission shall fix a separate qualifying standard in respect of the viva-voce test. RULE 16 of the Rules casts a duty on the Commission to prepare the result arranging the names of the candidates seriatum according to merit taking into consideration the total marks obtained by the candidates successfully as per the qualifying standards fixed for the written examination physical endurance test and viva-voce test. The Commission has also to declare a list of qualifying candidates accordingly. The next is to recommend the names of candidates according to requirement for appointment to the unreserved vacant posts required to be filled in on the basis of the result of the examination. RULE 17 of the Rules further provides the procedure to be followed by the Commission after all the stages of examination are over. It is not necessary to refer to other Rules in detail for the purpose of deciding controversy centering in this petition and therefore the same have not been dealt with in detail. Appendix `a prescribes syllabus for competitive examination for recruitment to the post of Police Sub-Inspector. So far as written examination is concerned a candidate has to appear in three papers : (1) Gujarati language (2) General Knowledge and Psychological test (objective type) and (3) English. It is prescribed in Appendix `a that each paper would carry 100 marks. From the affidavit-in-reply it is apparent that the Commission had prescribed 170 marks as minimum qualifying marks for the purpose of passing written test. A candidate who passes written test is eligible for being called at physical endurance test. A stiff physical test is taken in the items enumerated in Part-IV of Appendix `a. One who gets through the physical endurance test is eligible for being called at viva-voce test. Appendix `a provides that viva-voce test would carry 50 marks. From the affidavit-in-reply filed on behalf of the respondent it is clear that the Commission had prescribed 18 marks as minimum qualifying marks for the purpose of passing viva-voce test. It is important to note that in this case the results of the viva-voce examination are not assailed on the ground of mala fide or personal bias etc. From the affidavit-in-reply filed on behalf of the respondent it is clear that the Commission had prescribed 18 marks as minimum qualifying marks for the purpose of passing viva-voce test. It is important to note that in this case the results of the viva-voce examination are not assailed on the ground of mala fide or personal bias etc. on the part of the members of the Commission. Challenge to the result of the viva-voce test is purely as a consequence and incident of the challenge to the vires of Rule 15 of the Rules. ( 11 ) THE need to have viva-voce test for selection to the post of Police Sub-Inspector (Unarmed Male Branch) can hardly be over-emphasised. A Police Sub-Inspector is required to perform several important duties and over and above dealing with the members of public very often he has to undertake challenging task. The person working as Police Sub-Inspector should not only be physically fit and reasonably intelligent but should be able to perform his duties effectively. There is nothing unreasonable or arbitrary in the stipulation that officers to be selected for higher services and who with the passage of time are expected to man increasingly responsible position in the core services such as the Administrative Services and the Police Services should be men endowed with personality traits conducive to the levels of performance expected in such services. Academic excellence is one thing. Ability to deal with members of public with tact and imagination is another. As observed by the Supreme Court in the case of Mehmood Alam Tariq (supra) administrative and Police Services constitute the cutting edge of the administrative machinery and the requirement of higher traits of personality is not an unreasonable expectation. ( 12 ) THE written test examination assesses the mans intellect and the viva-voce tests the man himself. It is now well settled that while a written examination assesses a candidates knowledge and intellectual ability an interview test is valuable to assess a candidates overall intellectual and personal qualities. While a written examination has certain distinct advantages over the interview test there are yet no written tests which can evaluate a candidates initiative alterness resourcefulness dependableness co-operativeness capacity for clear and logical prosecution effectiveness in discussion effectiveness in meeting and dealing with other adaptability judgment ability to make decisions ability in lead intellectual and moral integrity. While a written examination has certain distinct advantages over the interview test there are yet no written tests which can evaluate a candidates initiative alterness resourcefulness dependableness co-operativeness capacity for clear and logical prosecution effectiveness in discussion effectiveness in meeting and dealing with other adaptability judgment ability to make decisions ability in lead intellectual and moral integrity. In the circumstances the requirement that a candidate to be eligible for selection as Police Sub-Inspector should also pass the viva-voce test cannot be said to be unreasonable or arbitrary. THE next question which requires to be examined and determined is whether Rule 15 of the Rules is ultra vires as it confers unbriddled and unguided powers on the Commission to prescribe minimum qualifying marks for viva-voce test. Once it is held that requirement to pass viva-voce test is not unreasonable and arbitrary it becomes necessary for the authority to prescribe minimum qualifying marks for passing the said test. It is evident from Rule 15 that a candidate who passes the written examination is eligible to appear at the physical endurance test and a candidate who passes the physical endurance test becomes eligible to appear at the viva-voce test. In view of the provisions of Rule 7 ordinarily every year the office of the Director General of Police and Inspector General of Police has to be intimate to the Home Department not later than 30th November the requirement of the Police Sub-Inspectors (Unarmed Male Branch) for the next year commencing with next April. The Home Department has to communicate the requirement of Police Sub-Inspectors to the Commission and the Commission has to issue the advertisement for the said post after receiving final requisition from the Home Department. Thereafter the Commission has to hold examination. After all stages of the examination are over the Commission has to prepare the result arranging the names of the candidates seriatum according to merit taking into account the total marks obtained by successful candidates. Out of the successful candidates the Commission recommends the names of the candi dates according to the requirement of Government. The Commission has also to prepare a waiting list. Out of the successful candidates the Commission recommends the names of the candi dates according to the requirement of Government. The Commission has also to prepare a waiting list. The result of the examination is required to be divided into three parts : (1) The names of the candidates to be recommended to Government (2) The names of the candidates to be kept on the waiting list till the result of the next examination is published and (3) The names of candidates who do not qualify. Thus before prescribing minimum qualifying marks for viva-voce test the Commission has to take into consideration (1) the requirement of government as reflected in final requisition received from Home Department (2) The number of candidates applying for the post (3) The number of candidates passing the written examination and (4) the number of candidates passing the physical endurance test who qualify for appearing at the viva-voce test. The Commission has also to take into consideration the minimum qualification prescribed the age group from which the selection is to be made etc. before prescribing passing standards for viva-voca test. Thus sufficient guidelines have been provided in the rules themselves on the basis of which the Commission has to prescribe minimum qualifying marks for passing the viva-voce test. By no stretch of imagination it can be said that unbriddled and unguided powers have been conferred on the Commission to prescribe minimum qualifying marks to be obtained at viva-voce test. In the affidavit-in-reply dated 11/05/1994 it is pointed out that the standard for passing the written examination is laid down in such a manner that the candidates numbering about 12 times of the posts to be filled up are called for appearing at the Physical Endurance Test and normally the Commission calls candidates numbering about 3 times of the posts to be filled-up for appearing at the viva-voce test. In view of the sufficient guidelines laid down in the Rules it cannot be said that Rule 15 is ultra vires on the ground that it is arbitrary and it confers unguided and uncanalized powers on the Commission to prescribe minimum qualifying marks to be obtained at viva-voce test. In Ashok Kumar Yadav (supra) the selection for the Haryana Civil Service (Executive) and Allied Services was made on the basis of written examination and interview. In Ashok Kumar Yadav (supra) the selection for the Haryana Civil Service (Executive) and Allied Services was made on the basis of written examination and interview. The allocation of marks for interview was 33% in the case of ex-service officers and 22. 2% in the case of other candidates. The Supreme Court has held that in the case of ex-service officers viva-voce test may be attached relatively greater weight because the personalities of such officers being fully mature and developed it would not be difficult to arrive at a fair assessment of their merits on the basis of searching and incisive viva-voce test. At the same time the Supreme Court felt that the allocation of 33. 3% marks for viva-voce test for ex-service officers and 22. 2% for other candidates was excessive and that the same should not exceed 25% for ex-service officers and 12. 2% for other candidates. It has been observed by the Supreme Court :. . . NOW if both written examination and viva-voce test are accepted as essential feature of proper selection in a given case the question may arise as to the weight to be attached respectively to them. . . There cannot be any hard and fast rule regarding the precise weight to be given to the viva-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 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 Lila Dhar case `exaggerated weight has been given with proven or obvious oblique motives. THESE observations would indicate that no hard and fast rule regarding the precise weight to be given to the viva-voce test as against written examination can be laid down and the said weight must vary from service to service according to the requirement of service. Having regard to the provisions of Rule 15 it becomes evident that written examination physical endurance test and viva-voce test are essential features of proper selection. Having regard to the provisions of Rule 15 it becomes evident that written examination physical endurance test and viva-voce test are essential features of proper selection. It may be stated that out of total 450 marks only 50 marks have been allocated to viva-voce which roughly comes to 11%. In view of the duties which a Police Sub-Inspector is required to perform prescription of 18 marks as minimum qualifying marks cannot be said to be arbitrary or unreasonable in any manner or on higher side. On careful consideration of the matter I am persuaded to the view that prescription of minimum qualifying marks of 18 out of 50 marks set apart for viva-voce test does not by itself incur any constitutional infirmity. The principle laid down in Ashok Kumar Yadavs case does not militate against or render impermissible such prescription. There is nothing unreasonable or arbitrary in the stipulation that a candidate to be selected for recruitment to the post of Police Sub-Inspector should secure minimum qualifying marks of 18 out of 50 marks at viva-voce test. IN Special Civil Application No. 3820 of 1981 and Special Civil Application No. 5381 of 1983 the facts were that the petitioners who were candidates at the examinations held by the Gujarat Public Service Commission for selection of candidates for appointment to the posts of Executive Engineers in Gujarat Service of Engineers Class-I and Deputy Executive Engineer in Gujarat Service of Engineers Class-II had filed petitions challenging the selection and merit list on the ground that the Commission had acted arbitrarily in fixing qualifying or minimum marks for viva-voce test. Rule-4 of the Executive Engineers (Civil) Gujarat Service of Engineering Class-I Recruitment Rules 1979 empowered the Commission to fix qualifying marks for viva-voce and personality test. The Commission fixed 100 marks out of 200 as qualifying marks for passing viva-voce test. Rule 4 of the Examination Rules which conferred power upon the Commission to fix qualifying marks for viva-voce test was challenged as ultra vires Articles 14 and 16 of the Constitution. Ultimately at the time of hearing of the petitions challenge to validity of Rule 4 of the Examination Rules was given up. On the basis of return filed on behalf of the Commission the Court found that no uniform standard was adopted and qualifying marks at viva-voce test varied from examination to examination. Ultimately at the time of hearing of the petitions challenge to validity of Rule 4 of the Examination Rules was given up. On the basis of return filed on behalf of the Commission the Court found that no uniform standard was adopted and qualifying marks at viva-voce test varied from examination to examination. The Court interpreted Rule 4 of the Examination Rules to mean that it was within the discretion of the Commission whether or not to fix qualifying marks for viva-voce test and thus viva-voce test was not considered as an important test. On construction of Rule 4 the Court found that the language used in the Rule and the manner in which it was framed made it evident that greater value or weight was attached to written test as compared to viva-voce test. After holding that the Commission was not expected to apply the same standard for viva-voce test which it applied to written test the Court observed that prescription of 50% marks as qualifying marks for viva-voce and 45% marks as qualifying marks for written test was unreasonable and had no nexus with the object of examination. After referring to certain instances the Court found that irrational and unreasonable standards were adopted by the Commission and candidates of outstanding merit were 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. Under the circumstances the Court held that the action of the Commission in fixing the qualifying marks for viva-voce test was arbitrary unreasonable and unjustified and gave direction to the Commission to consider the question of inclusion of the petitioners name in the merit lists on the basis of aggregate of marks in the written as well as viva-voce tests. In my view this decision is of no assistance to the petitioner. The language of Rule 4 of the Executive Engineers (Civil) Gujarat Service of Engineers Class-I Recruitment Rules 1979 is quite different from that of Rule 15 of the Rules. Rule 15 of the Rules in no uncertain terms empowers the Commission to fix minimum qualifying marks for viva-voce test. From the affidavit-in-reply it is apparent that consistent standards have been followed by the Commission while prescribing minimum qualifying marks for viva-voce test. Rule 15 of the Rules in no uncertain terms empowers the Commission to fix minimum qualifying marks for viva-voce test. From the affidavit-in-reply it is apparent that consistent standards have been followed by the Commission while prescribing minimum qualifying marks for viva-voce test. The rquirement that a candidate should obtain 18 out of 50 marks allocated to viva-voce test is by no means unreasonable. No instances have been pointed out that irrational and unreasonable standads have been adopted by the Commission while fixing qualifying marks for viva- voce test. The Commission has not applied to written test. Under the circumstances no direction can be given to the Commission to consider the case of the petitioner for his inclusion in the select list on the basis of aggregate marks obtained by him ignoring minimum qualifying marks prescribed by Commission for passing viva-voce test. ( 13 ) IN the case of Mohmood Alam Tariq (supra) the Supreme Court examined constitutional validity of Rajasthan State and Subordinate Service (Direct Recruitment by Combined Competitive Examinations) Rules 1962 the Rajasthan Administrative Service Rules 1954 the Rajasthan Police Service Rules 1954 and the Rajasthan Forest Service Rules 1962 All the Rules contain a provision that the candidates should secure minimum 33% marks in the viva-voce test. Proviso (I) to Rule 15 of 1962 Rules which was challenged by the appellant reads as under :15 Recommendations of the Commission : (1) The Commission shall prepare for each service a list of the candidates arranged in order of merit of the candidates as disclosed by the aggregate marks finally awarded to each candidate. If two or more of such candidates obtain equal marks in the aggregate the Commission shall arrange their names in the order of merit on the basis of their general suitability for the service. Provided that : (I) the Commission shall not recommend any candidate for the R. A. S. R. P. S. who has failed to obtain a minimum of 33% marks in the personality and viva-voce examination and a minimum of 50% marks in the aggregate. It shall also not recommend any candidate for other services who has failed to obtain a minimum of 45% marks in the aggregate. WHILE upholding the constitutional validity of the Rules the Supreme Court after referring to its earlier decisions has held that Rule prescribing 33 as minimum qualifying marks is not arbitrary. It shall also not recommend any candidate for other services who has failed to obtain a minimum of 45% marks in the aggregate. WHILE upholding the constitutional validity of the Rules the Supreme Court after referring to its earlier decisions has held that Rule prescribing 33 as minimum qualifying marks is not arbitrary. The Supreme Court has also held that a mere possibility of abuse of provision does not by itself justify its invalidation. It is ruled therein that validity of provision must be tested with reference to its operation and efficacy in the generality of cases and not by the freaks or exception that its application might in some rare cases possibly produce. The Supreme Court has emphasised that the affairs of Government cannot be conducted on principles of distrust and if the selectors had acted mala fide or with oblique motives there are administrative law remedies to secure reliefs against such abuse of powers. ( 14 ) AFTER reviewing almost all its earlier decisions the Supreme Court in the case of Abid Asghar (supra) has held that the decisions of the Supreme Court with regard to fixation of marks for interview in a selection broadly fall into two categories : (1) selection for admission to educational institution and (2) selection for employment in service and different considerations apply for determining the weightage to be given to viva-voce examination for the two categories. Following the principle laid down in Lila Dhar v. State of Rajasthan. (1981) 4 SCC 159 it is held that the matter of weightage to be attached to interview and the allocation of marks for interview vis-a-vis marks for written examination can arise when written examination as well as viva-voce test are both accepted as essential feature of proper selection and no hard and fast rule regarding precise weightage to be given to the viva-voce test as against written examination can be laid down as weightage must vary according to the requirements of service. In the facts of that case selection for appointment on the post of Unani Medical Officer was challenged. 50% marks were prescribed for viva-voce and 50% marks for academic purpose. On review of law on the subject the Supreme Court has held that prescription of 50 marks for viva-voce test cannot be said to be unreasonable or arbitrary in any manner. 50% marks were prescribed for viva-voce and 50% marks for academic purpose. On review of law on the subject the Supreme Court has held that prescription of 50 marks for viva-voce test cannot be said to be unreasonable or arbitrary in any manner. ( 15 ) SIMILARLY in Mohmood Alarm Tariq v. State of Rajasthan (1988) 3 SCC 241 the Supreme Court has upheld fixation of 33% as minimum qualifying marks for viva-voce test. ( 16 ) THE submission that whole selection process is made dependant upon viva-voce test and therefore prescription of minimum qualifying marks which a candidate must obtain for passing viva-voce test being unreasonable and unguided Rule 15 of the Rules should be declared to be ultra vires has no merits. The point raised is clearly answered by the Supreme Court in the case of State of U. P. v. Rafiquddin A. I. R. 1988 S. C. 162. The Supreme Court considered the permissibility of the prescription of minimum qualifying or cut off marks in viva-voce examination while dealing with clause (ii) of the Proviso to Rule 19 of the U. P. Civil Service (Judicial Branch) Rules 1951 The provision required the selection committee to ensure that persons who did not secure sufficiently high marks in the interview were not recommended for the post. . Pursuant to the power thus reserved to it the selection committee prescribed certain minimum cut off marks for the interview. The Supreme Court while upholding the validity of prescription has observed as under :. . . Aggregate marks obtained by a candidate determined his position in the list but the proviso of the rule required the Commission to satisfy itself that the candidate had obtained such aggregate marks in the written test as to qualify him for appointment to service and further he had obtained such sufficiently high marks in viva- voce which would show his suitability for the service. The scheme underlying Rule 19 and the proviso made it apparent that obtaining of the minimum aggregate marks in the written test and also the minimum in the viva-voce was the sin qua non before the Commission could proceed to make its recommendation in favour of a candidate for appointment to the service. The Commission in view of Cl. (ii) of the proviso had power to fix the minimum marks for viva-voce for judging the suitability of a candidate for service. The Commission in view of Cl. (ii) of the proviso had power to fix the minimum marks for viva-voce for judging the suitability of a candidate for service. Thus a candidate who had merely secured the minimum of the aggregate marks or above was not entitled to be included in the list of successful candidates unless he had also secured the minimum marks which had been prescribed for the viva-voce test. . . . . . . The Commission had therefore power to fix the norm and in the instant case it had fixed 35 per cent minimum marks for viva-voce test. The viva-voce test is a well-recognised method of judging the suitability of a candidate for appointment to public services and this method had almost universally been followed in making selection for appointment to public services. Where selection is made on the basis of written as well as viva-voce test the final result is determined on the basis of the aggregate marks. If any minimum marks either in the written test or in viva-voce test are fixed to determine the suitability of a candidate the same has to be respected. ( 17 ) THIS will in any view conclude the present controversy in favour of the respondent. As observed earlier no personal bias or mala fide are alleged against the members constituting the Commission. The petitioner was required to pass through viva-voce test. The petitioner has failed to secure minimum qualifying marks prescribed by the Commission for passing the viva-voce test. As the petitioner failed to get through the viva-voce test his name was not included in the select list prepared by the Commission. As per Rule 16 of the Rules the Commission has to prepare the result arranging the names of the candidates seriatum according to merit taking into consideration the total marks obtained by the candidates successfully as per the qualifying standard fixed for the written examination physical endurance test and viva-voce test. However if a candidate fails to obtain minimum qualifying marks at viva-voce test his total aggregate marks cannot be taken into consideration because his name is not liable to be included in the select list. Thus in my view no ground is made out for granting any of the reliefs prayed for in the petition. ( 18 ) IN view of the above discussion the petition fails. Thus in my view no ground is made out for granting any of the reliefs prayed for in the petition. ( 18 ) IN view of the above discussion the petition fails. Rule is discharged with no order as to costs. The interim relief granted earlier is hereby vacated. .