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2011 DIGILAW 2142 (RAJ)

Kalu Ram v. State of Rajasthan

2011-10-11

ARUN MISHRA, KAILASH CHANDRA JOSHI

body2011
Hon'ble MISHRA, CJ.—Heard learned counsel for the parties. 2. The petitioner in the writ application has questioned the constitutionality of Rule 23 of the Rajasthan Police Subordinate Service Rules, 1989, inasmuch as it provides for securing 36% minimum marks in interview. Condition 6 (d) of advertisement to the same effect has also been questioned. 3. The vacancies were advertised on 7.4.2008 for the post of police constable. Petitioner belongs to Other Backward Class category and is having qualification of Senior Higher Secondary. He applied for the post of Police Constable. He appeared in the written examination in which he succeeded. Call letter was sent for physical test and interview in which he appeared on 25.8.2008. Petitioner participated in the process of interview. The result of the interview was declared on 27.8.2008 at 2.30 AM at night in which he was not shown as successful. Petitioner has submitted that in view of the Standing Order dated 3.4.2008 (Annex. 7 to the writ petition), since he had knowledge of Hindi written in Devanagri Script and having knowledge of Rajasthani Culture, he ought to have been declared pass. 4. Reliance has been placed on decision in Vijay Kumari vs. State of Raj. & Ors., rendered by the Single Bench of this Court. The interview could not have been made the basis of sole determining factor in the selection process of the post of Police constable. Petitioner had been given 2 marks in the interview out of 10 marks whereas he got 40.125 marks in the written examination out of 50 marks and 20 marks in physical efficiency test out of 20 marks. Hence, the present petition has been filed. 5. In the return filed by the respondent, it is contended that various questions were put to the petitioner in the interview. It is wrong to say that only the name of father was asked to him. In the interview, the aptitude and personality is assessed for adjudging the suitability of a candidate for the post of Police Constable whereas written test and the physical test are basically to screen the candidates. As the applications are received in large number, actual knowledge is tested in interview. Only 36% marks out of ten marks had been kept as passing marks in the interview which could not be said to be illegal or arbitrary in any manner. 6. As the applications are received in large number, actual knowledge is tested in interview. Only 36% marks out of ten marks had been kept as passing marks in the interview which could not be said to be illegal or arbitrary in any manner. 6. Counsel appearing on behalf of the respondent has placed reliance on a decision of the Apex Court in Mehmood Alam Tariq and Others vs. State of Rajasthan and others, AIR 1988 SC 1451 wherein it has been held that requirement of higher traits of personality is not an unreasonable expectation. For the selection to a post in a disciplined force considering the nature of duties to be performed by a constable, candidate must be fit from every angle and must have ability to perform the duties. Hence, prayer has been made to dismiss the writ application. 7. Mr. M.S. Godara, learned counsel appearing on behalf of the petitioner has questioned the vires of Rule 23 of the Rules of 1989 on the ground that considering the post of constable, it was not appropriate to prescribe minimum passing marks and now this requirement has been dispensed with. Learned counsel has also relied upon the Standing Order dated 3.4.2008 so as to take home the submission that the petitioner knew Hindi language written in Devanagri script and culture of Rajasthan, therefore there was no rhyme or reason not to award 36% marks to him in the interview. Not awarding 36% marks in the interview, was illegal and arbitrary considering his performance in written examination as well as physical test. He had been deliberately given lower marks in the interview. 8. Mr. I.S. Pareek, learned Addl. Govt. counsel appearing on behalf of the respondent has submitted that considering the post of constable in a disciplined force, passing marks could have been prescribed. The provision cannot be said to be illegal or arbitrary in any manner. Merely by the knowledge of Hindi language and Rajasthani Culture, there was no reason to award passing marks in view of the Standing Order. Petitioner has failed to clear the interview, thus no case for interference is made out in the writ application. 9. Coming to the first submission as to prescribing of minimum passing marks in the interview, 50 marks were allocated for written examination, 20 marks for physical test and 10 marks for interview. Petitioner has failed to clear the interview, thus no case for interference is made out in the writ application. 9. Coming to the first submission as to prescribing of minimum passing marks in the interview, 50 marks were allocated for written examination, 20 marks for physical test and 10 marks for interview. 36% marks were necessary out of 10 marks to pass in interview. Rule 23 of the Rules of 1989 provides that the Board/Commission shall not recommend candidates, who have secured less than 36% marks in interview and 45% marks in the aggregate. For SC/ST, 30% passing marks have been prescribed in interview and 40% marks in the aggregate. Rule 23 of the Rules of 1989 is quoted below:- "23. Recommendations of the Board/Commission.- The Board/ Commission shall prepare a list of the candidates, whom they consider suitable for appointment to the post concerned, arranged in order of merit, and forward the same to the Director General-cum-Inspector General of Police, who shall in his turn intimate to the Appointing Authority concerned, the name of the candidates in order of merit as mentioned in the list, upto the number of vacancies available. The Board, Commission shall not recommend candidates, who have secured less than 36% marks in interview and 45% marks in the aggregate: Provided that the Recruitment Board/Commission may recommend candidates belonging to the Scheduled Castes and Scheduled Tribes, who though failing to obtain the minimum marks, are declared by the Board/to be suitable for appointment to the service with due regard to the maintenance of efficiency of administration, if the candidates secure 30% marks in interview and 40% marks in the aggregate." 10. In our opinion, prescribing of minimum passing marks in the interview cannot be termed to be illegal or arbitrary at all in view of the necessity of adjudging aptitude and personality for appointment in the police service. Merely passing of written examination and physical test could not be said to be enough so as to be appointed as constable in a disciplined force. Aptitude and personality cannot be judged from the marks obtained in the written examination or physical fitness. 11. Merely passing of written examination and physical test could not be said to be enough so as to be appointed as constable in a disciplined force. Aptitude and personality cannot be judged from the marks obtained in the written examination or physical fitness. 11. In Mehmood Alam Tariq and Others vs. State of Rajasthan and others, AIR 1988 SC 1451 , the Apex Court has laid down that by prescribing 33% marks as minimum qualifying marks in the interview in the Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examinations) Rules, 1962, there was no constitutional infirmity. The Apex Court has laid down that academic excellence is one thing. Ability to deal with the public with tact and imagination is another. Both are necessary for an officer. 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. Thus, it could not be said that a minimum of 33% in viva-voce was a determining factor in selection process. The decision of this Court to the contrary, was reversed. The Apex Court after considering the cases of Ajay Hasia ( AIR 1981 SC 487 ), Lila Dhar ( AIR 1981 SC 1777 ) and Ashok Kumar Yadav ( AIR 1987 SC 454 ), has ultimately laid down thus:- 8. On a careful consideration of the matter, we are persuaded to the view that the prescription of minimum qualifying marks of 60 (33%) out of the maximum marks of 180 set apart for the viva-voce examination does not, by itself, incur any constitutional infirmity. The principles laid down in the cases of Ajay Hasia ( AIR 1981 SC 487 ), Lila Dhar ( AIR 1981 SC 1777 ) and Ashok Kumar Yadav ( AIR 1987 SC 454 ), do not militate against or render impermissible such a prescription. There is nothing unreasonable or arbitrary in the stipulation that officers to be selected for higher services and who are, with the passage of time, 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. There are features that, distinguish, for instance, Accounts Service from the Police Service-a distinction that drawn upon and is accentuated by the personal qualities of the officer. There are features that, distinguish, for instance, Accounts Service from the Police Service-a distinction that drawn upon and is accentuated by the personal qualities of the officer. Academic excellence is one thing. Ability to deal with the public with tact and imagination is another. Both are necessary for an officer. The does that is demanded may vary according to the nature of the service. 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. Indeed in Lila Dhar vs. State of Rajasthan (1982) 1 SCR 320 , ( AIR 1981 SC 1777 at page 1780) this Court observed: "Thus, the written examination assesses the man's intellect and the interview test the man himself and `the twain shall meet' for a proper selection. If both written examination and interview test are to be essential feature of proper selection the question may arise as to the weight to be attached respectively to them. In the case of admission to a college, for instance, where the candidates personality is yet to develop and it is too early to identify the personal qualities for which greater importance may have to be attached in later life, greater weight has per force to be given to performance in the written examination. The importance to be attached to the interview test must be minimal. That was what was decided by this Court in Periakaruppan vs. State of Tamil Nadu, AIR 1971, SC 2303; Ajay Hasia vs. Khalid Mujib Sehruvardi, ( AIR 1981 SC 487 ) and other cases. On the other hand, in the case of service to which recruitment has necessarily to be made from persons of mature personality, interview test may be the only way, subject to basic and essential academic and professional requirements being satisfied." "...There are, of course, many services to which recruitment is made from younger candidates whose personalities are on the threshold of development and who show signs of great promise, and the discerning may in an interview test, catch a glimpse of the future personality in the case of such services, where sound selection must combine academic ability with personality promise? Some weight has to be given, though not much too great weight, to the interview test. There cannot be any rule of thumb regarding the precise weight to be given. Some weight has to be given, though not much too great weight, to the interview test. There cannot be any rule of thumb regarding the precise weight to be given. It must vary from service to service according to the requirement of the service, the minimum qualifications prescribed, the age group from which the selection is to be made, the body to which the task of holding the interview test is proposed to be entrusted and host of other factors. It is a matter for determination by experts. It is a matter for research. It is not for courts to pronounce upon it unless exaggerated weight has been given with proven or obvious oblique motives. The Kothari Committee also suggested that in view of the obvious importance of the subject, it may be examined in detail by the Research Unit of the Union Public Service Commission." This Court indicated that in matters such as these, which reflect matters of policy, judicial wisdom is judicial restraint. Generally matters of policy have little adjudicative disposition. 9. Indeed, the point raised in the appeals admits of the answer found in the pronouncement of this Court in State of U.P. vs. Rafiquddin Judgments Today 1987 (4) SC 251 ( AIR 1988 SC 162 ) where this Court considered the permissibility of the proscription of minimum qualifying or cut-off marks in viva-voce examination, while dealing with clause (ii) of the proviso to Rule 19 (as it stood prior to the 1972 amendment) of the U.P. Civil Service (Judicial Branch) Rules 1951. The provision required the selection committee, inter alia, to ensure that persons who did not secure sufficiently, high marks in the interview were not recommended for the posts. Pursuant to the power thus reserved to it, the selection committee, prescribed certain minimum cut-off marks for the interview. This court upholding the validity of the prescription observed at page 264 and 265 (of JT): (at pages 171-172 and 173 of AIR): "...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 sine-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 clause (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 mad 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. Clause (ii) of the proviso to Rule 19 clearly confers power on the Commission to fix minimum marks for viva-voce test for judging the suitability of a candidate for the service. We do not find any constitutional legal infirmity in the provision." This should, in your opinion, conclude the present controversy in favour of the appellants. 10. Shri Rao's reference to and reliance upon the observations in Yadav's case is somewhat out of contest. The context in which the observations were made was that the spread of marks for the viva-voce was so enormous, compared with spread of marks for the written examination, that the viva-voce test `tender to become the determining factor.' The reference was to the possibility of a candidate undeservedly being allotted high marks at the interview. That is a very different thing from the question whether a candidate should acquire at least a certain minimum percentage of marks at the viva-voce. That is a very different thing from the question whether a candidate should acquire at least a certain minimum percentage of marks at the viva-voce. The distinction in the two sets of situations is brought out in the words of an administrator Sir Ross Barket: "My experience, which has been chiefly confined to cases in which the number of candidates was not so large, is that the whole process is dangerous and infinitely hazardous. I think most selection committees on which I have served have been very doubtful about the results of what they had done. They have done their best on insufficient materials. The process is I think fairly successful in weeding out the worst candidates...." (See `Union Public Service Commission-M.A. Muttalib page 135) 12. Considering the aforesaid dictum of the Apex Court, we are of the considered opinion that prescribing of minimum passing marks in interview for determination of the aptitude and personality to judge the suitability of an incumbent for the police service which in supposed to be the disciplined force, cannot be termed to be illegal or arbitrary in any manner. The provision prescribing of passing marks in interview had been made so as to adjudge the suitability of the candidate. Interview is a process which permits weeding out of candidates who are unfit for the service. Consequently, Rule 23 of the Rules of 1989 cannot be said to be illegal or arbitrary or unconstitutional in any manner. 13. Coming to the second submission raised by the counsel for the petitioner based upon the Standing Order dated 3.4.2008 contained in part-IV with respect to the process of interview, it has been provided that interview shall consist of aptitude and personality assessment to judge the suitability of a candidate; it shall be ensured that only candidates having working knowledge of Hindi written in Devnagari script and knowledge of Rajasthani culture are awarded pass marks in the interview; the candidates for the posts of Constable (Band) shall be asked questions on band equipment, their maintenance, and knowledge of music; those for the posts of Constable (Mounted) shall be asked questions on riding, horses, their upkeep and related matters; candidates for the posts of constable (Driver) shall be asked questions on driving techniques, vehicle parts and functioning, vehicle maintenance, traffic signals etc. Following is the provision with respect to the interview contained in Standing Order No. 1/2008 dated 3.4.2008 issued by the Office of Director General of Police Rajasthan, Jaipur. "INTERVIEW.-interview shall consist of aptitude and personality assessment to judge the suitability of a candidate. It shall be ensured that only candidates having working knowledge of Hindi written in Devnagari script and knowledge of Rajasthani culture are awarded pass marks in the interview. The candidates for the posts of Constable (Band) shall be asked questions on band equipment, their maintenance, and knowledge of music. Those for the posts of Constable (Mounted) shall be asked questions on riding, horses, their upkeep and related matters. Candidates for the posts of constable (Driver) shall be asked questions on driving techniques, vehicle parts and functioning, vehicle maintenance, traffic signals etc. Candidates securing less than 36% (30% in case of Scheduled Castes and Scheduled Tribes, Other Backward Classes and Women candidates, if adequate number of candidates with 36% marks is not available) marks in interview shall be declared unsuccessful and they shall not be eligible for recruitment. A copy of all the original certificates shall be obtained from the candidates just before the interview. The photocopies should be compared with the original certificates/ documents to verify their authenticity. All original certificates/ documents shall essentially be seen by the Board at the time of interview." 14. Relying upon the aforesaid provision, it was submitted by learned counsel appearing on behalf of the petitioner that when the petitioner was having knowledge of Hindi written in Devnagari script and knowledge of Rajasthani culture, at least passing marks ought to have been awarded to him. Non-grant of minimum passing marks in view of the provision contained in the Standing Order 1/2008 was per se illegal. 15. The submission raised by Mr. M.S. Godara, learned counsel appearing on behalf of the petitioner is unworthy of acceptance. It is apparent from the provision that interview has to be held for the purpose of adjudging the aptitude and personality assessment of a candidate and the person having knowledge of Hindi written in Devnagari script and the knowledge of Rajasthani culture, may not be cleared in interview and that is necessary for effective functioning of police force considering the nature of duty. It does not follow from the aforesaid provision that merely by the knowledge of Hindi written in Devnagari script and knowledge of Rajasthani culture, an incumbent is entitled to be cleared in the interview as various other questions are required to be answered by a candidate so as to adjudge the aptitude and personality assessment. The provision makes it clear that candidate for the post of Constable (Band) shall be asked questions of band equipment, their maintenance and knowledge of music and for other posts also, the questions related to those subjects are to be asked. For the post of constable (Driver), questions with respect to driving techniques, vehicle parts and functioning, vehicle maintenance, traffic signals etc. have to be put. It means that merely knowledge of Hindi written in Devnagari script and knowledge of Rajasthani culture are not the only requirement to clear the interview. One has to answer several questions pertaining to the trade to which he has put stake. 16. In the instant case, no malafide has been attributed to any individual. Thus, this Court cannot examine the question as to adequacy the award of marks by the Interview Board. We find that the petitioner has not been able to successfully demonstrate that awarding of 2 marks out of 10 marks was illegal or arbitrary in any manner. The baid suggestion made by the petitioner that only one question was put to him, has been denied in the return and that is also not the submission raised by the learned counsel appearing on behalf of the petitioner. In the absence of attributing malafide to the interview Board, we find that merely on the strength of having qualified in written examination and physical efficiency test, and having knowledge of Hindi in Devnagari script and Rajasthani culture the petitioner cannot as of right claim minimum passing marks in the interview which is held for adjudging overall aptitude and personality assessment and suitability to the police service. 17. The Division Bench of this Court in D.B. Civil Special Appeal No. 638/2009 (State of Raj. & Ors. vs. Madan Gopal Paliwal) decided on 25.1.2011 has held that this Court cannot interfere in the grant of marks by the Interview Board in the absence of malafide pertaining to the same selection process and the decision rendered by the Single Bench had been reversed. 18. & Ors. vs. Madan Gopal Paliwal) decided on 25.1.2011 has held that this Court cannot interfere in the grant of marks by the Interview Board in the absence of malafide pertaining to the same selection process and the decision rendered by the Single Bench had been reversed. 18. This Court has considered the desirability of prescribing the passing marks in the interview though in different context of the examination for Higher Judiciary. This Court in Rajesh Jain & Ors. vs. Rajasthan High Court & Ors. (D.B. Civil Writ Petition No. 568/2011) and other connected matters decided on 28.1.2011 has observed that prescribing of minimum passing marks may be necessary so as to adjudge the suitability for service. This Court has also considered the decisions of the Apex Court in Ramesh Kumar vs. High Court of Delhi & Anr. (2010) 3 SCC 104 and K.H. Siraj vs. High Court of Kerala (2006) 6 SCC 395 and other decisions of the Apex Court. The Apex Court in Ramesh Kumar vs. High Court of Delhi & Anr. (supra) has observed thus: "10. The aforesaid statutory provision undoubtedly does not fix any particular criteria or minimum Bench Marks either in the written test or in interview for the purpose of selection. Rule 10 provides that the High Court "may hold such tests as may be considered necessary," it impliedly provides for requirement necessary for assessment of suitability of a candidate. There is no challenge to the validity of Rule 10 in these writ petitions. The question does arise as to whether the Rules enabled the High Court to fix the minimum Bench Marks for interview.? 11. In State of U.P. vs. Rafiquddin & Ors., AIR 1988 SC 162 ; Dr. Krushna Chandra Sahu & Ors. vs. State of Orissa & Ors. AIR 1996 SC 352 ; Majeet Singh, UDC & Ors. vs. Employees' State Insurance Corporation & Anr. AIR 1990 SC 1104 ; and K.H. Siraj vs. High Court of Kerala & Ors. AIR 2006 SC 2339 , this Court held that Commission/Board has to satisfy itself that a candidate had obtained such aggregate marks in the written test as to qualify for interview and obtained "sufficient marks in viva voce" which would show his suitability for service. Such a course is permissible for adjudging the qualities/capacities of the candidates. AIR 2006 SC 2339 , this Court held that Commission/Board has to satisfy itself that a candidate had obtained such aggregate marks in the written test as to qualify for interview and obtained "sufficient marks in viva voce" which would show his suitability for service. Such a course is permissible for adjudging the qualities/capacities of the candidates. It may be necessary in view of the fact that it is imperative that only persons with a prescribed minimum of said qualities/capacities should be selected as 6 otherwise the standard of judiciary would get diluted and sub-standard stuff may get selected. Interview may also be the best mode of assessing the suitability of a candidate for a particular position as it brings out overall intellectual qualities of the candidates. while the written test will testify the candidate's academic knowledge, the oral test can bring out or disclose overall intellectual and personal qualities like alertness, resourcefulness, dependability, capacity for discussion, ability to take decisions, qualities of leadership etc. which are also essential for a Judicial Officer. 12. Re-interacting similar views, this Court has given much emphasis on interview in Lila Dhar vs. State of Rajasthan & Ors., AIR 1981 SC 1777 ; and Ashok Kumar Yadav & Ors. vs. State of Haryana & Ors. AIR 1987 SC 454 stating that interview can evaluate a candidate's initiative, alertness, resourcefulness, dependableness, co-operativeness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others, adaptability, judgment, ability to make decision, ability to lead, intellectual and moral integrity with some degree of error." 19. However, the Apex Court has laid down that minimum passing marks could not have been prescribed once the proceedings for selection had been commenced and criteria of selection could not have been changed in the midst of selection process. In K. Manjusree vs. State of Andhra Pradesh & Anr. 2008 SC 1470, the Apex Court has laid down that selection criteria has to be adopted and declared at the time of commencement of the recruitment process. In the instant case, the rule was in force with effect from 1989, prescribing of minimum passing marks could not be said to be unwarranted considering the nature of service. 20. Resultantly, we are of the considered opinion that Rule 23 of the Rajasthan Police Subordinate Service Rules, 1989 cannot be said to be ultra vires or unconstitutional. In the instant case, the rule was in force with effect from 1989, prescribing of minimum passing marks could not be said to be unwarranted considering the nature of service. 20. Resultantly, we are of the considered opinion that Rule 23 of the Rajasthan Police Subordinate Service Rules, 1989 cannot be said to be ultra vires or unconstitutional. The petition being devoid of merit, is hereby dismi-ssed. Parties are left to bear their own costs. Stay petition is also dismissed.