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2007 DIGILAW 2176 (PNJ)

Anil Kumar v. Union Of India

2007-12-14

HEMANT GUPTA, MOHINDER PAL

body2007
Judgment Hemant Gupta, J. 1. The challenge in the present writ petition is to the action of the respondents in not appointing the petitioner as Sub Inspector in the Indo Tibetan Border Police (hereinafter referred to as the `ITBP) in pursuance of the examination held in the year 2003. 2. The petitioner was recruited as Constable in the ITBP on 14.9.1993. The Standing Order No. 6/2000 dated 30.6 2000 was issued by the respondent- department introducing Limited Departmental Competitive Examination for the posts of Sub Inspector (General Duty) in ITBP. There is a quota of 17% fixed for the employees like the petitioner who are already in service and as per the Standing Order, each candidate can get three chances to appear in the test. The petitioner availed two chances but remained unsuccessful. In the third chance he secured 68.4 % marks in written examination and 38% marks in interview and thus, the claim of the petitioner is that he is qualified for the post of Sub Inspector, but he has wrongly been not declared as qualified. The petitioner issued a legal notice dated 20.9.2005. In response to the said legal notice, it was pointed out that the petitioner has got 38% marks in interview and thus, he has failed. It is pointed out in the communication that 50% marks were to be obtained for qualifying the interview. 3. Learned counsel for the petitioner contents that it is the 50% of the aggregate marks of the written and interview which is required for a candidate to be qualified, but by misinterpretation of the Standing Order, the petitioner has been declared unqualified. It is argued that in any case fixation of 45% marks for qualifying the interview is wholly arbitrary and illegal. Learned counsel for the petitioner relies upon a Division Bench judgment of this Court passed in Civil Writ Petition No. 5226 of 1999, titled as Sub-Major J.S. Randhawa v. Union of India and others, 2000(4) SCT 184 (P&H) decided on 12.7.2000, wherein in identical circumstances, the Court found that there is no minimum qualifying marks for the interview. 4. As per the Annexure P-2, the petitioner has obtained 342 marks out of total 500 marks in the written examination, whereas in interview the petitioner has obtained 315 marks out of 100. 4. As per the Annexure P-2, the petitioner has obtained 342 marks out of total 500 marks in the written examination, whereas in interview the petitioner has obtained 315 marks out of 100. Thus, the petitioner has obtained total 380 marks out of total 600 marks, which is more than 50% marks. 5. Having heard learned counsel for the parties, we are of the opinion that the action of the respondents holding the petitioner not qualified for appointment as Sub Inspector is unjustified in law. The 45% marks required for interview and personality test for in service candidates for appointment as Sub Inspector, is highly excessive and in fact, arbitrary. 6. The grant of marks in interview has been the subject matter of interpretation in various judgment. In case "Ashok Kumar Yadav v. State of Haryana, AIR 1987 SC 454", the Honble Supreme Court has held that fixation of more than 12-1/2 % marks for interview can be said to be arbitrary. In the earlier judgment i.e. "Lila Dhar v. State of Rajasthan, AIR 1981 SC 1777", the Court has drawn the distinction in the case of admission to Colleges where the candidates personality is yet to develop. In the said process, the importance to be attached to the interview test must be minimal. But in case of services to which the recruitment has necessarily to be made from the persons of mature personality, the interview test may be the only way. 7. In "D.V. Bakshi and others v. Union of India and others, AIR 1993 SC 2374" considering Lila Dhars case (supra), the Court found that a heavy responsibility is cast on the examiners to maintain a proper record of the oral test in respect of each candidate and marks must preferably be assigned under each head considered relevant to evaluate the candidate. Once this care is taken, the element of subjectivity will be largely checked and the marks assigned under different heads at the oral test will more or less faithfully reflect the fitness of the candidate. 8. In "All India State Bank Officers Federation and others v. Union of India and others, 1997(1) SCT 91 : (1997)9 Supreme Court Cases 151", the decision precedent of the said Court shows that no rigid rule, relating to percentage of marks for interview or general universal application can or has been laid down. 8. In "All India State Bank Officers Federation and others v. Union of India and others, 1997(1) SCT 91 : (1997)9 Supreme Court Cases 151", the decision precedent of the said Court shows that no rigid rule, relating to percentage of marks for interview or general universal application can or has been laid down. What the interview or viva voce marks should be may vary from service to service and the office or position or the purpose for which the interview is to be held. The Court held that the interview marks should not be so high as to give an authority unchecked scope to manipulate or act in an arbitrary manner while making selection. Where merit can be best judged by holding an interview, there such marks may be high but each case will have to be judged on its own facts. 9. In "Kiran Gupta and others v. State of U.P. and others, 2000(4) SCT 695 : AIR 2000 SC 3299", the Court has noticed prescribing higher percentage of marks for interview when the selection is on the basis of both oral and written test. 10. Though in the present case, the interview marks are 20% of the total that by itself may not be said to be excessive, but the fact remains that the minimum qualifying marks in interview is 45%. Thus, the leverage is in the hands of the Selection Committee so as to exclude a candidate from selection by downgrading him in interview. No records have been produced so as to show how the grading has been effected while granting 38% marks to the petitioner in interview, as required in terms of the Supreme Court Judgment in D.V. Bakshis case (supra). The condition to obtain minimum qualifying marks when the candidate is to be promoted as in-service candidate shows possibility of arbitrariness in the selection process. Awarding of such marks is capable of being abused. In fact, the manner of selection shows that such minimum qualifying marks is in fact, abused and thus not sustainable. Therefore, we are of the opinion that fixing minimum 45% qualifying marks in interview are unjustified. Therefore, the said clause is set-aside. 11. The petitioner has obtained more than 68% marks in the written examination. The combined percentage of marks of the petitioner in written examination and the interview is more than 50%. Therefore, we are of the opinion that fixing minimum 45% qualifying marks in interview are unjustified. Therefore, the said clause is set-aside. 11. The petitioner has obtained more than 68% marks in the written examination. The combined percentage of marks of the petitioner in written examination and the interview is more than 50%. The petitioner has satisfied all other conditions of selection circulated vide Annexure P-1. Therefore, the petitioner is eligible for appointment as Sub Inspector. In view of the above discussion, we allow the present writ petition and direct the respondents to appoint the petitioner as Sub Inspector from the date when the other candidates in pursuance of the test held in the year 2003 were appointed. The petitioner shall be entitled to all the consequential benefits such as pay fixation and salary. However, the petitioner shall not be entitled for the arrears of the salary of the post of Sub Inspector prior to his appointment as such. The respondents are further directed to comply with the directions within a period of two months from today.