JUDGMENT 1. - The petitioner, a law graduate, appeared with Roll No. 2624 at the competitive examination conducted by the Rajasthan Public Service Commission, Ajmer, respondent No.1 (for short 'the RPSC') on 16th and 17th days of October 1994 for selection of 113 candidates for recruitment to the Rajasthan Judicial Service (for short 'RJS'). This examination, as provided in the Rajasthan Judicial Service Rules 1955 (for short, 'the Rules 1955'), consisted of (i) a written examination carrying maximum marks at 300 and (ii) viva voce carrying 35 marks. Candidates securing a minimum 35% marks in each of the two law papers but 40% marks in the aggregate could become eligible for being called for interview. The viva-voce carried no minimum pass marks. The petitioner was called for interview to be held on 17th May, 1995. But he could not appear before the Interview Board on that day due to illness and on his request his interview was postponed to and fixed on May 22, 1995. Again, the petitioner could not appear for interview on that date and his request for further postponement of the interview was rejected. The result of the examination was declared on May 23, 1995. In the result sheet published in the daily newspaper 'Dainik Nav Jyoti' dated 24.5.1995 he was declared selected at position No. 75. However, below the published list of selected candidates a note was appended wherein it was mentioned that the result of six candidates, including the petitioner had been withheld and six posts were kept vacant. On representations having been made by the petitioner to the respondents a mark sheet was sent to him. This mark sheet showed that the petitioner had secured 175 marks in the written examination but remained 'absent' for the viva voce. 2. The case of the petitioner now is the candidates who had secured less marks than he were recommended by R.P.S.C. to the State of Rajasthan; (Respondent No.2) for appointment to the R.J.S. and thus Articles 14 and 16 were voilated in his case. He has accordingly prayed for issue of a writ of mandamus, or any other appropriate writ or order or direction to R.P.S.C. to recommend his name to respondent No.2 for appointment to the R.J.S. 3. He has accordingly prayed for issue of a writ of mandamus, or any other appropriate writ or order or direction to R.P.S.C. to recommend his name to respondent No.2 for appointment to the R.J.S. 3. The case of the respondents, on the other hand, is that as per scheme, of the Rules 1955 viva-voce/interview is part and parcel of the whole process of selection and since the petitioner failed to appear before the Interview Board, despite opportunity given to him for two times, his result, as was initially declared but withheld on 23.5.1995, was cancelled vide corrigendum dated 31.5.1995 and amended result sheet dated 9.6.95. 4. Mr. Mohd. Rafique, the learned counsel for the petitioner urged that since the Rules 1955 prescribe no minimum marks to be compulsorily secured by a candidate in the viva-voca for his selection for appointment to the R.J.S. and the petitioner had secured much more total marks than many of the candidates selected and recommended for appointment to R.J.S., the petitioner is entitled to the equal treatment. In this behalf the learned counsel has referred to certain decided cases, to be discussed shortly. 5. Mr. Kumawat, the learned counsel for R.P.S.C. has, however, submitted that viva-voce/interview being an integral part of the process of selection and the petitioner, having not undergone the whole of the process, cannot claim selection on the basis of the marks obtained in the written examination only. Mr. Kumawat has also supported his view point with some decided cases. 6. The arguments raised by the learned counsel for the parties require the study of the relevant provisions in the Rules 1955 in the light of the proposition laid down in the cases relied upon by them.Rules 1955 regulate recruitment to the posts in and the condition of Service of persons appointed to the RJS. The source of recruitment is a competitive examination conducted by the RPSC. The number of persons to be recruited at each examination is to be determined by the Governor in consultation with the High Court and then the competitive examination is conducted by the RPSC at such time and at such dates as it may notify. The source of recruitment is a competitive examination conducted by the RPSC. The number of persons to be recruited at each examination is to be determined by the Governor in consultation with the High Court and then the competitive examination is conducted by the RPSC at such time and at such dates as it may notify. The process of selecting the candidates for recruitment to the R.J.S. commences by calling for applications by the RPSC, from such aspiring candidates who fulfil the eligibility criteria and possess the requisite qualification as laid down in part IV of Rules 1955, for permission to sit at the examination by publishing a notice to that effect in the Rajasthan Gazette and in such other manner as the Commission may deem fit. The competitive examination consists of two parts namely (a) written examination in the subjects specified in Schedule III appended to Rule 15 and (b) an interview to test the general knowledge of the candidate and his fitness for appointment to RJS. The written examination, carrying 300 marks, comprises of two law papers of 100 marks each and Essay papers in Hindi and English of 50 marks each. The law papers are designed to test the practical knowledge of the candidate in Civil and Criminal Laws and procedures relating to the conduct and decision of the cases/suits. After the receipt of the marks obtained by the candidates in the written test the RPSC calls for interview such of them as have obtained a minimum of 35% in each of the law papers and 40% in the aggregate.The viva voce test carries 35 marks. In interviewing a candidate, his suitability for recruitment to the RJS is required to be tested with reference to his record at the school, college and university and his character, personality, address and physique. The questions which might be put to him may be of a general nature and would not necessarily be academic or legal. Questions to test the general knowledge including knowledge of current affairs and present day problems may also be put to the candidates. The marks awarded to a candidate are to be added to the marks obtained by him in the written examination. Questions to test the general knowledge including knowledge of current affairs and present day problems may also be put to the candidates. The marks awarded to a candidate are to be added to the marks obtained by him in the written examination. Unlike the written examination the viva voce test carries no minimum pass marks.After aggregating the marks obtained by the candidates in the written test and in the viva test a select list is prepared by the RPSC, on the basis of proficiency disclosed by the aggregate marks obtained by each candidate. The candidates named in this select list are recommended by the RPSC to the State Govt. for recruitment to the RJS (Rule 19). However, the RPSC is required not to recommend such candidate or candidates who have failed to obtain a minimum of 45% marks in the aggregate both of written and oral examinations. The process of selection of the candidate by the RPSC is completed with the submission of the select list by them to the State Govt. The process of appointment of the candidate to the RJS is complete after making appointment under Rule 21 after a Medical Board has found them medically fit and the Governor has felt satisfied of their antecedents and suitability. 7. The scheme underlying the process of selection of the candidates for recruitment to the RJS loudly speak that the viva test makes an integral and essentially inseparable part of such process. Rule 7 makes the result of a competitive examination conducted by the RPSC as the only source of recruitment to the RJS. Rule 14 directs that a competitive examination for recruitment to the service shall be held at such intervals as the Governor may, in consultation with the Court, from time to time, determine. Rule 15 speaks of the syllabus for and rules relating to the competitive examination. Such syllabus and rules have been incorporated in Schedule III appended to this Rule. Rule (B) of Schedule III mandates, inter alia, that the viva test shall carry 35 marks and only those candidates who might have obtained a minimum of 35% marks in each of the Law papers and 40% in the aggregate in the written test shall be eligible to be called for interview. Rule (B) of Schedule III mandates, inter alia, that the viva test shall carry 35 marks and only those candidates who might have obtained a minimum of 35% marks in each of the Law papers and 40% in the aggregate in the written test shall be eligible to be called for interview. It is true that the Rules in the Schedule do not state that a candidate shall have to secure a minimum percentage of 35% marks in the interview in order to be finally declared as selected for recruitment but that fact alone does not, in any way, minimise the importance and requirement of the viva test. For, proviso First to rule 19 enjoins upon the RPSC not to recommend any candidate who has failed to obtain a minimum of 45% marks in the aggregate both of written and oral examinations. Aggregation of the marks is to be made as per mandate contained in the syllabus and Rules relating to the competitive examination which, in the last paragraph, dearly provide that the marks obtained by a candidate at the interview shall be added to the marks obtained by him in the written test. It may be noted that after having made the viva test as one of the necessary part of the process of selection in Rule 15 read with Schedule III, the Rule making authority deemed it fit to reiterate that fact in the First Proviso to Rule 19 and to disempower and prohibit the RPSC from recommending any candidate who has failed to obtain a minimum of 45% in the aggregate both of written and Oral examinations. The use of the word "both" in the language of the First Proviso to Rule 19 clearly exhibits the intention-nay-anxiety of the rule making authority to ensure that a person to be appointed to the RJS not only possesses the requisite qualification and practical knowledge of the Civil and Criminal Laws and the procedures thereunder but also is suitable for employment to the RJS with reference to his record at the school, college and University and his character, personality, address and physique. If the viva test is not considered to be the essential part of the process of selection of the candidate to the recruitment to RJS through a competitive examination there shall be no opportunity to the examining body to test his personality and address the importance of which cannot be minimised in judging his suitability to discharge the duties of a judicial officer. It cannot be overlooked that he is required to work at the grassroot level of the State Judiciary and therefore apart from the written test his overall performance at the oral interview is more important. This importance of the oral interview may be noted from the fact that a candidate obtaining a minimum of 35% marks in each of the two Law papers but 40% of marks in the aggregate of all the four papers, as required by Rule (B) of Schedule III is considered eligible for being called for interview, but he has to obtain a minimum of 45% marks in the aggregate both of the written and the oral examination before being finally recommended under Rule 19 for appointment to RJS. The difference of 5% marks between the minimum marks requisite for the eligibility of a candidate for interview and the minimum marks requisite for his selection clearly points out at the importance of the viva test in the process of his selection for appointment to the R.J.S. 8. The Apex Court appears to have considered the importance of viva test in the selection of persons to hold judicial post in State Judiciary in the case of Madan Lal & others v. State of J & K and Others, (1995) 3 S.C.C. 486 : Explaining the proposition laid down in Minor A. Peeriakuruppan Vs. State of Tamil Nadu, (1971) 1 SCC 38 , which was a case relating to the selection of students for admission to the MBBS Course in the State of Tamil Nadu, their Lordships observed as under : ".....It is also to be kept in view that while selecting a student for admission in MBBS Course, what is more important is his performance in the written test and even at the oral interview his past record has its own weight. A student while undertaking study is not required to perform any duty of a public office. A student while undertaking study is not required to perform any duty of a public office. But in the case of recruitment to the posts of Munsif he is required to work at the grassroot level of State Judiciary. For candidates aspiring to be appointed in such a judicial office, apart from the written test, the oral interview is more important....." (Emphasis supplied) 9. Emphasising the necessity and importance of interview, besides written test, in the matter of selection process and choice of candidates for recruitment to public posts their Lordships observed as under in the case of Manjeet Singh Vs. Employees, State Insurance Corp., AIR 1990 Supreme Court 1104 : ".......We are of the view that the scheme intended for recruitment should be on the basis of an examination comprising of written test and interview. We agree with Sh. Madhav Reddy that interview has its own place in the matter of selection process and the choice of candidates. Once this is recognised, it would be appropriate to require every candidate to pass the interview test and for that purpose there should be a basic limit provided. In the absence of any prescription of qualifying marks for the interview test the same prescription of 40% as applicable for the written examination seems reasonable. This has been the view expressed by one of us (Punch J) in a decision ( Rajesh Sood Vs. Director General Employees State Insurance Corp. decided on August 7, 1985 ) to which our attention has been drawn. We approve of the view....... (Emphasis supplied) 10. The above observations were made by their Lordships in the context of direct recruitment of employees under the State Insurance Corp. on the basis of the examination and interview. The advertisement did not prescribe any marks in the interview though for the written examination 40% was prescribed. Selection was, however, made on the basis of 40% in the interview test. Petitioners were not selected. Challenge was made by the unsuccessful candidates questioning their rejection by contending that in the absence of any prescription to apply the 40% basis, for interview they could not be required to obtain any minimum marks in interview. Their Lordship rejected such a contention. The observations made by their Lordships in the manner stated above answer the similar argument raised on behalf of the petitioner before me in this petition. Their Lordship rejected such a contention. The observations made by their Lordships in the manner stated above answer the similar argument raised on behalf of the petitioner before me in this petition. Such observations do, incidentally also clarify the degree of weightage to be given to the view of this court in the case of Ramesh Chand Paliwal Vs. State of Rajasthan, RLW 1990(2) 461 and which were to the following effect : ".......For any candidate appearing for recruitment to RJS his aim has always to be to secure more than 45% marks in the written examination papers. It is pertinent to note that no minimum percentage of marks is prescribed in the rules for interview. Thus, a candidate who secure a good percentage of marks in the written examination papers can always be selected even if he secures negligible marks in the interview...." and also that "personality of a candidate does not have that much importance in judicial service as it has in administrative services" 11. In view of the law laid down by their Lordships of the Apex Court in the cases referred to above there seems to be no room for the view that interview is not an integral part of the process of selection of persons for their recruitment to RJS. Rules 14, 15 and 19 of the Rules 1955 read alongwith the rules made in Schedule III under Rule 15 clearly mandate that for inclusion in the final list of selected candidates, to be prepared by the RPSC for recommendation to the State Govt. for recruitment to the RJS, a candidate has necessarily to undergo the process of interview. 12. Rules 14, 15 and 19 of the Rules 1955 read alongwith the rules made in Schedule III under Rule 15 clearly mandate that for inclusion in the final list of selected candidates, to be prepared by the RPSC for recommendation to the State Govt. for recruitment to the RJS, a candidate has necessarily to undergo the process of interview. 12. The argument of the learned counsel for the petitioner that since acquisition of any minimum percentage of the 35% marks in the viva voce is not prescribed as basic limit, an absentee from the interview should be considered in the position of a candidate who appeared for the interview but failed to secure any marks therein or, to put it more clearly, secured nil mark and, therefore, after adding the nil mark to the marks obtained by him in the written examination the required 45% of the total marks should be arrived at and if on such addition he gets place in the merit list, he should be included in the final select list under Rule 19, does not appeal to me in the light of the law laid down by the Apex Court in the case of Manjeet Singh (supra). Once it is recognised, as was observed in Manjeet Singh's case, that importance of interview cannot be minimised in selection of candidates for appointment to public offices and thus it makes an integral part of the selection process, it is appropriate to require every candidate to pass the interview test and for that purpose the same percentage of 40% as is applicable for the written examination should be considered as reasonable and basic limit for the viva test. It, therefore, necessarily follows that the absence of a candidate from interview cannot logically be equated to the position of a candidate who appears in the interview and obtains Nil mark. The Rules in Schedule III and the Proviso under Rule 19 of the Rules 1955 do not permit the assumption of any deeming clause in them. No fiction is required to be made when there is none. In the interpretation of statute presence of any deeming clause cannot be assumed or presumed where none has been created by legislature. The provisions made in Rule 19 and the rules in the Schedule III under Rule 15 are dear, specific and admit of no ambiguity. No fiction is required to be made when there is none. In the interpretation of statute presence of any deeming clause cannot be assumed or presumed where none has been created by legislature. The provisions made in Rule 19 and the rules in the Schedule III under Rule 15 are dear, specific and admit of no ambiguity. Where the language employed in the relevant Statute is clear and unambiguous no attempt is required to read a fiction in it. 13. If the argument advanced by Mr. Rafique is accepted it is likely to lead to anomalous situation. A candidate who does not appear in the interview but who obtains 45% marks of the total marks at 335 (300 marks for written examination and 35 marks for interview) in the written examination only would be placed on a footing better than that of the candidate who appears both in the written test and the oral examination. This situation is likely to result in doing away with the requirement of holding the interview at all. The functioning of the relevant part of Rule 19 and of the Rules in the Schedule III relating to the viva voce would be jeopardised and those rules would become redundant and superfluous. In the construction of relevant provisions in a statute a situation which renders certain other provisions nugatory or non-functional should be avoided. Various provisions of the statute are required to be harmoniously construed and interpreted so that the object underlying the statute may be achieved. 14. It was next urged by Mr. Rafique that since the petitioner had secured 175 marks in the written test which marks were much more than those secured by many of the candidates who were recommended by RPSC for appointment to the RJS but could not appear in the interview due to his prolonged illness, he should be allowed to appear in an interview which may be held now. It was submitted that non-inclusion of the name of a candidate securing higher marks in the list submitted by the Commission to the Govt. for appointment is violative of Article 14 and 16 of the Constitution. Reliance in this behalf was placed on Mrs. Kalpana Kumbhat Vs. University of Jodhpur, 1981 WLN (4C) page 51 and Amra Ram Vs. University of Jodhpur, 1984 (4C) WLN 149 , Prakash Chandra Agarwal Vs. for appointment is violative of Article 14 and 16 of the Constitution. Reliance in this behalf was placed on Mrs. Kalpana Kumbhat Vs. University of Jodhpur, 1981 WLN (4C) page 51 and Amra Ram Vs. University of Jodhpur, 1984 (4C) WLN 149 , Prakash Chandra Agarwal Vs. State of Bihar, 1985 (2) All India Services Law Journal 392 , Narender Pal Sharma and Anr. Vs. State of Punjab & Haryana, 1955(1) SCC 532. I find no force in this argument either. 15. In the case of J. Ashok Kumar Vs. State of A.P. & Ors., 1966 (3) SCC 320 , the Apex Court ruled that when the selection process has already been over and the selected candidates have been appointed, relief to the petitioner, whose case is genuine, may be refused. In the case of Umesh Shukla Vs. U.O.I. & Ors., 1985(2) All India Services Law Journal 412 the Apex Court had already ruled that 'hard cases cannot be allowed to make bad laws'. Again in the case of Constable Divendra Singh Vs. State of Punjab & Haryana, 1996(7) SCC 153 , their Lordships of the Supreme Court laid down that unless the original selection was found to be violated by mala fide or arbitrary exercise of power of any other factor going to the root of the selection any direction by court to conduct any special test for unsuccessful candidate is improper. 16. In the instant case it is not in dispute that the selection process has already been over and the candidates selected appointed to the RJS. No mala fides or arbitraty exercise of power by the Members/officers of the RPSC-Respondent No.1 or officers of the State, respondent No.2 or any other factor going to the root of the selection has been noticed by me. The continued illness of the petitioner at or during the day(s) of interview may make the present case a hard one but as observed in Uma Shankar's case (supra) such a hard case cannot be allowed to make a bad law. The continued illness of the petitioner at or during the day(s) of interview may make the present case a hard one but as observed in Uma Shankar's case (supra) such a hard case cannot be allowed to make a bad law. Any sympathy to the petitioner on that account is not only likely to open doors for committing mischief against the relevant rules but is also likely to cause avoidable hardship in the functioning of the RPSC as an examining body, entrusted with the responsible duty of holding examination for recruitment of candidates to public offices and thus cause irreparable damage to the intended operation of the Rules 1955. 17. The cases relied upon by the learned counsel for the petitioner are distinguishable on facts and in law. In the case of Mrs. Kalpana Kumbhat (supra) the petitioner could not appear at the practical examination for M.SC. Zoology Final due to delivery problem. She claimed for holding special practical Exam. for her. This court, on facts of that case, found that the petitioner had been treated unequally inasmuch as that special examinations were held in past in several cases and that the ban put by the syndicate resolution failed to fulfil the test of reasonableness and smacked of arbitrariness. No such facts exist in the case before me. In Amra Ram's case (supra) the petitioner could not appear in practical examination for BE. III year due to accident. Relying upon the ratio of the decision in Mrs. Kalpana Kumbhat's case (supra) as also some other like cases holding of special practical Examination for the petitioner was directed by this court. This case too is distinguishable for the reasons given above. 18. The ratio decidendi in the two cases discussed above is required to be appreciated in the context of Apex Court's observations in the case of Madan Lal (supra) to the effect that whereas a student while undertaking study is not required to perform any duty of a public office, an appointee to the R.J.S. or for that matter to any public office, is required to work at grassroot level and therefore, the oral interview in his case has more importance than that in the case of the student aspiring for admission to a course of study. The ratio of the decisions in the two cases relied upon by Mr. The ratio of the decisions in the two cases relied upon by Mr. Rafique, thus makes no good guide for the decision of the present petition. 19. In Prakash Chand Agrawal's case (supra) the appellant had appeared both at the written examination and the viva voce test held for recruitment to the Bihar Civil Services (Judicial Branch). He secured 416 marks in all. The candidates whose names were shown against S. Nos. 36 and 37 nad secured 415 marks each and that at S.No. 38 secured 413. But the name of the appellant had not been included in the select list by the Bihar Public Service Commission. In fact initially a list of 83 candidates keeping in view the qualifying marks as 38% had been forwarded by the Commission but subsequently it had forwarded another list of 38 candidates keeping in view the qualifying marks as 40% as per recommendation of the High Court. It was on such facts that the Apex Court held that having fixed 38% as the qualifying marks it was not open to the commission to exclude the name of the candidate who had secured 38.8% marks in the written examination only because the High Court had earlier recommended that 40% marks should be the qualifying marks. On the face of it, the ratio of this decision does not apply to the present case. In the instant case the petitioner has not at all appeared for the viva voce test. 20. In Narendra Pal's case (supra) selection of candidates for being recommended for nomination to State Civil Service Class I on the basis of ACRs, experience and ability test comprising essay writing in State language and English was to be made. Since separate marks were awarded for ACRs and experience, exclusion of candidates securing 33% or less marks in the ability test for being considered for recommendation was held invalid as similar tests were not conducted in all the departments and the procedure adopted by the Chief Secretary was found arbitraty, illegal and unjust. The Apex Court ruled that criteria must be to include for consideration all those who secured marks on all heads and to recommend those who secured highest in aggregate. Such are not the facts in the present case and therefore, the ratio of this decision does not help the petitioner. 21. The Apex Court ruled that criteria must be to include for consideration all those who secured marks on all heads and to recommend those who secured highest in aggregate. Such are not the facts in the present case and therefore, the ratio of this decision does not help the petitioner. 21. To sum up, I hold that interview test makes an integral part of the process of selection of candidates for recruitment to the R.J.S. and that the absence of prescription for securing minimum percentage of the prescribed 35% marks for interview does not do away with the necessity and requirement for holding viva test and the candidate facing such test. I further hold that since the selection in the instant case is not found to be violated by mala fide or arbitrary exercise of power by the Members/Officers of the respondents as also no other factor going to the root of the selection is noticed, and no case of violation of Article 14 and 16 of the Constitution has been established, the petitioner is not entitled to any of the reliefs claimed by him in his petition. Since the petitioner did not undergo the entire process of selection, for recruitment to the RJS, exclusion of his name from the select test, prepared by RPSC under Rule 19 and forwarded to the State of Rajasthan was legally justified. The petition lacks merit and is accordingly dismissed. Costs on parties.Petition dismissed. *******