JUDGMENT L. MOHAPATRA, J. — The petitioner was the applicant before the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.148 of 2001 disposed of on 4th May, 2005. 2. The case of the petitioner is that she at the time of filing of the Original Application before the Tribunal was work¬ing as Principal System Analyst (Scientist ‘D’.) In terms of the promotion policy laid down by the opposite parties which is otherwise called “Flexible Complementing Scheme”, she was eligi¬ble for promotion to the post of Scientist ‘E’ in the rank of Technical Officer/Director on completion of four years of service as Scientist ‘D’/Principal System Analyst. Her case for promotion to the post of Scientist ‘E’ having not been considered by the Selection Committee in the years 2000 and 2001, she approached the Tribunal alleging therein that even though she had the high¬est qualification amongst all the officials working as Scientist ‘D’ from Orissa State Unit of National Informatics Centre (in short ‘NIC’), her achievement for the past years had not been given due weightage. She also alleged before the Tribunal that the area in which she was working, is a specialized one and cannot be evaluated properly by the officers not having expertise in that area. The body of Experts, who conducted the interview did not have any expert from the field of her specialization and, therefore, her performance in the interview could not be assessed properly. In the past years, she was not recommended by the Selection Committee even though she had the highest percentage so far as assessment of ACRs is concerned. Her further grievance before the Tribunal was that the selection for the purpose of promotion has been given solely on the basis of assessment of her performance in the interview and the ratings given in the ACRs have not been taken into consideration by the Selection Commit¬tee. As it appears from the judgment, the interview took place through video conferencing and it is the case of the petitioner that not a single question was asked relating to her subject but she had answered all the questions put to her through video con¬ferencing. As it appears from the judgment, the interview took place through video conferencing and it is the case of the petitioner that not a single question was asked relating to her subject but she had answered all the questions put to her through video con¬ferencing. From the above, it appears that the grievance of the petitioner before the Tribunal was that the promotion was being considered solely on the basis of performance in the interview and the performance of four years as Scientist ‘D’ as reflected in the ACRs were not taken into consideration at all. 3. A counter affidavit was filed before the Tribunal stating therein that the promotion from the post of Scientist ‘D’ to Scientist ‘E’ is solely on the basis of the merit and it is admitted in the counter affidavit that though the petitioner qualified for the interview on the basis of the ratings given in the ACRs for four years she worked as Scientist ‘D’, she could not qualify in the interview and, therefore was not recommended for promotion to the post of Scientist ‘E’. However, she could qualify for such promotion in 2007 and on the basis of the recom¬mendation of the Selection Committee she was given promotion to the post of Scientist ‘E’ in 2007 during pendency of this writ application. On analysis of the stand taken in the counter affi¬davit, it appears that in order to consider promotion from the post of Scientist ‘D’ to the post of Scientist ‘E’ one must complete four years of service in the post of Scientist ‘D’. Only on completion of four years, the case of an incumbent for promo¬tion to the post of Scientist ‘E’ is to be considered. For the purpose of selecting officers to face interview, the ACRs ratings are taken into consideration. Once an officer is found to have got requisites ratings in the ACRs, he/she is selected for inter¬view and only on the basis of marks obtained in the interview, recommendation is made for promotion. Therefore, the admitted position is that the ratings of an officer given in the ACRs for four years are considered for selecting the said officer for the purpose of interview, but for the purpose of promotion, ACRs ratings have no value and the same is done solely on the basis of the performance in the interview. 4. Therefore, the admitted position is that the ratings of an officer given in the ACRs for four years are considered for selecting the said officer for the purpose of interview, but for the purpose of promotion, ACRs ratings have no value and the same is done solely on the basis of the performance in the interview. 4. The learned counsel for the petitioner submitted that the percentage of marks fixed by the Selection Committee to qualify in the interview is excessive and, therefore, unreasonable. It was also contended by the learned counsel for the petitioner that non-consideration of the ratings in the ACRs for the purpose of promotion is unknown to law and when promotion is based solely on the basis of performance in the interview through video conferencing, the possibility of manipulation / favouritism/arbitrariness cannot be ruled out. The learned counsel drew attention of the Court to the Annexures in order to support his submission that from amongst the officers considered for promotion to the post of Scientist ‘E’, the petitioner was most qualified having Ph.D. She had also got excellent ratings in her ACRs continuously for four years while working as Scientist ‘D’. On the basis of these documents it was contended that the per¬formance of the petitioner as well as her qualification and competency were over looked and only on the basis of her perform¬ance in the interview, she was illegally not recommended by the Selection Committee for promotion. 5. Shri J.K. Mishra, the learned Assistant Solicitor General referring to the very same documents produced submitted that the promotion policy is applicable to all the employees and, therefore, there has been no departure in the case of the peti¬tioner. A decision was taken to select officers on the basis of their performance as Scientist ‘D’ for four years and the minimum percentage was fixed to select the officers to face interview for the purpose of promotion. Officers were selected on the basis of their ACRS to face interview and on the basis of their perform¬ance in the interview, they were given promotion and, therefore, it cannot be said that the performance of an officer for four years in the post of Scientist ‘D’ was not taken into considera¬tion at all. Officers were selected on the basis of their ACRS to face interview and on the basis of their perform¬ance in the interview, they were given promotion and, therefore, it cannot be said that the performance of an officer for four years in the post of Scientist ‘D’ was not taken into considera¬tion at all. The learned counsel also produced copies of the tabulation sheets for four years during which the petitioner could not be given promotion because of the marks obtained by her in the interview and submitted that such policy also has been made applicable to all the employees and there has been not a departure in case of any one of the employee. It was also con¬tended by the learned counsel that except the petitioner no other officer has made any grievance with regard to the promotion policy and, therefore, the petitioner having not qualified in the interview, cannot have any grievance for not being promoted to the post of Scientist ‘E’ prior to 2007. 6. The Ministry of Information Technology prepared a scheme called “the Flexible Complementing Scheme” (FCS) and the said scheme was made applicable only to scientists and technolo¬gists holding scientific posts in scientific and technological departments and in respect of persons who are engaged in scien¬tific activities and services. In exercise of the powers con¬ferred by the proviso to Article 309 of the Constitution, the President made rules regulating the in-situ promotion of Scien¬tific and Technical Group ‘A’ posts in the Scientific Ministries/Departments including Department of Electronics (now Ministry of Information Technology). The rule is now called the Scientific and Technical Group ‘A’ (Gazetted) posts in the Minis¬try of Information Technology (In-situ Promotion under Flexible Complementing Scheme) Rules, 1998. The rule is now called the Scientific and Technical Group ‘A’ (Gazetted) posts in the Minis¬try of Information Technology (In-situ Promotion under Flexible Complementing Scheme) Rules, 1998. The relevant portion of the rules dealing with promotion of Scientists working in different categories is quoted below : “xx xx xx (b) The scale of pay to which the Flexible Complementing Scheme shall apply, the minimum residency period linked to per¬formance for in-situ promotion to the next higher grade and the uniform designations of the scientific and technical posts cov¬ered under the Flexible Complementing Scheme shall be as given in the Table below : TABLE (1) (2) (3) Scientist B Rs.8000-275-13,500 3 years Scientist C Rs.10,000-325-15,200 4 years Scientist D Rs.12,000-375-16,500 4 years Scientist E Rs.14,300-400-18,300 5 years Scientist F Rs.16,400-450-20,000 5 years Scientist G Rs.18,400-500-22,400 —— (c) No person other than a person possessing the essential educational qualification of at least Master’s Degree in Science/Maths/Computers/Electronics or Bachelor’s Degree in Engineering or equivalent or Technology shall be eligible for in-situ promotion under the Flexible Complementing Scheme. 4. The revised assessment procedure prescribed by DOPT shall be as follows : (a) All the officers will be first screened on the basis of gradings in the Annual Confidential Reports (ACRs) for considera¬tion for promotion; the ACRS shall be assessed on a 10 point scale giving 10 marks for “outstanding”, 8 marks for “very good”, 6 marks for “good”, 4 marks for “average” and 0 for “poor” and only those officers who satisfy the minimum residency period linked to their performance as indicated in the table below be screened in. Number of years in the grade 3 4 5 6 7 8 Maximum Percentage For eligibility Scientist B to C 85% 80% 70% 65% 60% ... Scientist C to D ... 85% 80% 75% 70% 60% Scientist D to E ... 85% 80% 75% 70% 60% Scientist E to F ... ... 85% 80% 75% 70% Scientist F to G ... ... 85% 80% 75% 70% * Based on the clarification received from DOPT, the crite¬ria of marks for the first opportunity for promotion of S&T officers in all Group ‘A’ posts on the basis of assessment of ACRs and interview have been reduced from 90% to 85%. The minimum standard of 60% or 70% cannot be further relaxed even if a scien¬tist has put in more than 7/8 years of residency period. The minimum standard of 60% or 70% cannot be further relaxed even if a scien¬tist has put in more than 7/8 years of residency period. Exceptionally meritorious candidates with all outstanding gradings may be granted relaxation in the residency period, the relaxation being not more than one year on any single occasion. Such a relaxation will be limited to a maximum of two occasions in their entire career. (b) All the officers who are screened-in will be called for an interview. The performance in the interview will also be graded similarly on a 10 point scale and the eligibility for promotion will be based on the same norms as in the above Table.” 7. As is evident from the above rules, a person working against the post of Scientist D has to complete minimum residency period of four years for the purpose of promotion to the post of Scientist E. The table clearly indicates that when a person is considered for promotion from the post of Scientist D to Scien¬tist E on completion of four years of residency period, his/her ACRs for past four years are to be assessed and unless one se¬cures minimum 85% of marks in the gradings of ACRs, he/she would not be eligible to face interview. Similarly, on completion of 4th year, a person working against the post of Scientist D has to secure 85% of marks in the interview. If one fails to secure the above percentage of marks in the ACRs and interview on completion of 4th year, his/her case is to be considered on completion of 5th year. On completion of 5th year, the percentage of marks come down to 80% and likewise on completion of 8th year the percentage of marks come down to 60%. There has not been any further relaxa¬tion of marks below 60%. It is also provided in the rules that while assessing ACRs, 10 marks shall be awarded for ‘outstand¬ing’, 8 marks for ‘very good’, 6 marks for ‘good’, 4 marks for ‘average’ and 0 for ‘poor’. In the light of the aforesaid rules, if the case of the petitioner is examined, it will be seen that the petitioner on completion of four years of residency period as Scientist D was first considered for promotion to the post of Scientist E in January, 2001. In the light of the aforesaid rules, if the case of the petitioner is examined, it will be seen that the petitioner on completion of four years of residency period as Scientist D was first considered for promotion to the post of Scientist E in January, 2001. Though she secured 90% marks i.e. more than the minimum marks of 85% in ACRs, she could not qualify in the interview and her case was considered again in 2002. Simi¬larly, every year up to 2006 though she qualified for interview having secured more marks than the minimum required for ACRs gradings, she could not secure similar percentage of marks in the interview and only in January, 2007 she could secure the required percentage of marks in the interview and was found fit for promo¬tion. 8. The learned counsel for the petitioner challenges the rules solely on the ground that the percentage of marks fixed for interview is excessive and unreasonable and in this connection also he relied on some decisions of the Apex Court. It was also contended by the learned counsel for the petitioner that the ACR gradings are only considered for the purpose of selecting offi¬cers to face interview and the promotion is given solely on the basis of performance in the interview and, therefore, arbitrari¬ness cannot be ruled out. In the case of Praveen Singh v. State of Punjab and others, reported in AIR 2001 Supreme Court 152, the Supreme Court while examining the provisions contained in Punjab Development and Pan¬chayat Class II (Service) Rules 1974 held that while the adminis¬trative or quasi-judicial authority clothed with the power of selection and appointment ought to be left unfettered in adapta¬tion of procedural aspect but it can never mean and imply that the same would be made available to an employer at the cost of fair play, good conscience and equity. Interpreting Article 16 of the Constitution, the Court further held that the interview should not be the only method of assessment of the merits of candidates. The vice of manipulation cannot be ruled out in viva voce test. Though interview undoubtedly is a significant factor in the matter of appointments, it plays a strategic role but it also allows creeping in of a lacuna rendering the appointments illegitimate. The vice of manipulation cannot be ruled out in viva voce test. Though interview undoubtedly is a significant factor in the matter of appointments, it plays a strategic role but it also allows creeping in of a lacuna rendering the appointments illegitimate. Obviously it is an important factor but ought not to be the sole guiding factor since reliance thereon only may lead to a “sabotage of the purity of the proceedings”. In the case of Vikram Singh and another v. The Subordinate Services Selection Board, Haryana and others reported in AIR 1991 Supreme Court 1011 the Supreme Court held that the provisions contained in the relevant rules providing for 28.5% of marks for viva voce test is unreasonable. In the case of Ashok Kumar Yadav and others v. State of Haryana and others, reported in 1985 (3) S.L.R. (S.C.) 200 while examining the Punjab Civil Service (Executive Branch) Rules 1930, the Apex Court found that fixation of 33 1/3% marks for ex-servicemen and 22.2% marks for general category for viva voce test is excessive and arbitrary and the Court further held that minimum marks for viva voce test should not exceed 12.2% for general category and 25% in case of ex-servicemen. Though the Apex Court did not quash the appointment considering the fact that it will upset large number of appointments in the said judgment, but observed that the minimum marks for general catego¬ry in viva voce test should not exceed 12.2%. In the case of Satpal and others v. State of Haryana and oth¬ers, reported in 1995 Supp.(1) Supreme Court Cases 206, the Supreme Court examined the Haryana Revenue Patwaris (Group ‘C’) Service Rules, 1981 wherein 85% marks had been allocated for interview which was held to be conducive to arbitrary selection by the High Court. The Supreme Court up held the order of the High Court and held as follows : “So far as the third ground is concerned, there is no dis¬pute that out of 100 marks, 15 marks were reserved for higher educational qualifications, sports, experience, etc. whereas 85 marks were reserved for the performance of the candidate at the viva voce. The High Court came to the conclusion that the high percentage of marks reserved for the viva voce test left room for arbitrary selection. whereas 85 marks were reserved for the performance of the candidate at the viva voce. The High Court came to the conclusion that the high percentage of marks reserved for the viva voce test left room for arbitrary selection. To counter this contention, the learned counsel for the appellants once again invited our attention to the observations made by this Court in paragraph 7 of Sardara Singh case and submitted that the selection could not be quashed on the ground that high percentage of marks were reserved for interviews. In paragraph 7 of the judgment, this Court observed that under the extant rules the Board had the option of choice in regard to the mode of selection and it had opted in favour of the viva voce method and since the rules were not in challenge before the Court the option of the Board could not be assailed. The observations in paragraph 7 of the judgment cannot be read as laying down a ratio that notwithstanding the high percentage of marks reserved for interview the rule laying down the same is unassailable. In Ajay Hasia v. Khalid Mujib Sehravardi the Con¬stitution Bench held that allocation of more than 15% of the total marks for the oral interview would be arbitrary and unrea¬sonable and would be liable to be struck down as constitutionally invalid. In Ashok Kumar Yadav case this Court once again reiter¬ated that where the marks allotted for viva voce test are dispro¬portionally excessive, it would tend to arbitrariness. In para¬graphs 26 to 28 this Court dealt with the matter extensively and came to the conclusion that allocation of 22.2 per cent marks for the viva voce test was excessive and unreasonably high, tending to leave room for arbitrariness. In the instant case, apart from the fact that the percentage of marks allocated for interview as high as 85, the fact that as may as 400 to 600 candidates were interviewed on a single day also provides reason to believe that the selection process tended to be arbitrary. In any case there is room for such suspicion to be reasonably entertained. We are, therefore, of the opinion that the view taken by the High Court in this behalf is unassailable.” 9. In any case there is room for such suspicion to be reasonably entertained. We are, therefore, of the opinion that the view taken by the High Court in this behalf is unassailable.” 9. In the light of the aforesaid decisions, if the case of the petitioner is examined, it is found that on completion of four years of residency period as Scientist D, one is required to secure minimum 85% in ACRs grading and 85% in the interview. In 5th year one has to secure 80% in ACRs gradings and 80% in the interview. In the 6th year one has to secure 75% in ACRs gradings and 70% in the interview. In the 7th year one has to secure 75% in ACRs grading and 70% in the interview. Similarly, in the 8th year one has to secure 60% in ACRs and 60% in the interview. Further relaxation for promotion has not been permitted under the rules. 10. Shri J.K. Mishra, the learned Assistant Solicitor General has produced the tabulation sheets indicating the marks obtained by different officers in the post of Scientist D consid¬ered for promotion to the post of Scientist E for certain years. The petitioner was first considered for promotion to the post of Scientist E in December, 2000 with cut off date January, 2001. She had got 90% marks in ACRs, but having secured 70% in the interview was not selected. In 2002, she qualified in the ACRs gradings, but secured 70% in the interview and was not selected. On examination of all the tabulation sheets of six years i.e. from December, 2000/January 2001 to 2006, we find that the peti¬tioner had secured more than the minimum marks required in the ACRs gradings, but could not secure the required percentage of marks in the interview and accordingly was not selected. Only in the year 2007, she was found fit having secured minimum percent¬age of marks in both ACRs gradings and interview. 11. The first ground taken by the learned counsel for the petitioners with regard to the percentage of marks fixed for interview. Undisputedly the rule provides that in the 4th year a person has to secure 85% of marks in the interview and the minimum percentage of marks in the interview gets reduced in the succeeding years by 5% to a minimum of 60%. Undisputedly the rule provides that in the 4th year a person has to secure 85% of marks in the interview and the minimum percentage of marks in the interview gets reduced in the succeeding years by 5% to a minimum of 60%. The rule also pro¬vides that a person in order to get promotion from Scientist D to Scientist E has to secure the same minimum percentage of marks in ACRs gradings and interview with a minimum of 60% in the 7th year and maximum of 85% in the 4th year. The judgments of the Apex Court referred to earlier clearly lay down that such high per¬centage of minimum mark in an interview results in arbitrariness. In the case of Satpal and others v. State of Haryana and others (supra) the minimum percentage of marks in the interview had been fixed at 85%. The Court held that fixation of such high percent¬age of marks in the interview left room for arbitrary selection. In the case of Ashok Kumar Yadav and others v. State of Haryana and others (supra) the Court went to the extent of holding that the minimum percentage of marks for general category in the interview should not exceed 12.2%. Therefore, we find considerable force in the contention of the learned counsel for the petitioner that the minimum percentage of marks fixed in the rules for the purpose of interview is excessive and even on considering the fact that the officers before the Court are Scientists, such high percentage of marks as minimum mark in an interview is definitely on a very high side in view of the deci¬sions rendered by the Supreme Court referred to earlier. The other ground taken by the learned counsel for the petitioner is that the ACRs gradings have been completely ignored. There may be some force in the contention of the learned counsel for the department that the ACRs gradings have been taken into considera¬tion for the purpose of selecting the officers to face interview, but it is undisputed that the actual selection is based on the percentage of marks obtained in the interview. The same is also evident from the tabulation sheet produced by the department before this Court. The same is also evident from the tabulation sheet produced by the department before this Court. The Apex Court in the case of Praveen Singh v. State of Punjab and others (supra) held that while the adminis¬trative or quasi-judicial authority clothed with the power of selection and appointment ought to be left unfettered in adapta¬tion of procedural aspect but it cannot mean and imply that the same would be made available to an employer at the cost of fair play, good conscience and equity. The Court in the said judgment further held that though the interview undisputedly is a signifi¬cant factor in the matter of appointments, it plays a strategic role but it also allows creeping in of a lacuna rendering the appointments illegitimate. The Court further went to the extent of holding that the interview is an important factor but ought not to be the sole guiding factor since reliance thereon only may lead to a “sabotage of the purity of the proceedings”. On consid¬eration of the above, we also agree with the learned counsel for the petitioner that the ACRs gradings could not have been used only for the purpose of selecting the officers to face interview but the same should have also been taken into consideration along with the marks obtained in the interview for the purpose of promotion. 12. In view of the above, we allow the writ application with the following directions : (A) We declare Rule-4(b) of the Ministry of Information Tech¬nology (In-situ Promotion under Flexible Complementing Scheme) Rules, 1998 to be invalid in law and fixation of the basis of percentage in interview to be excessive and beyond the limits prescribed by the Hon’ble Apex Court in the case of Ashok Kumar Yadav (supra). (B) We direct the Opp.party-Union of India to carry out neces¬sary amendments to Rule-4(b) in order to make it in consonance with the dicta of the Hon’ble Apex Court. (C) We further declare that the promotion under “Flexible Com¬plementing Scheme” should only be made by taking into considera¬tion both, the marks secured on consideration of ACRs as well as at interview. (C) We further declare that the promotion under “Flexible Com¬plementing Scheme” should only be made by taking into considera¬tion both, the marks secured on consideration of ACRs as well as at interview. (D) The entire exercise shall be completed within a period of three months, whereafter, the petitioner’s case for promotion shall be reconsidered in the light of the aforesaid directions and/or the amendments that may be carried out by the Union of India and if the petitioner is found suitable, be given promo¬tion from the date of her entitlement, on notional basis, so that the said period can be taken into account for her future promo¬tions. I. MAHANTY, J. I agree. Application allowed.