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Andhra High Court · body

2013 DIGILAW 266 (AP)

M. Rajitha v. Revenue Divisional Officer

2013-04-04

C.V.NAGARJUNA REDDY

body2013
Order Since the issue relating to percentage of allocation of marks for interview is common in all these cases, they are heard and being disposed of together. In addition to the above issue, the petitioners in Writ Petition Nos.7022, 7440 and 7907 of 2013 have raised another issue, namely; reservations provided to different subcategories of B.C. community candidates. In Writ Petition No.7261 of 2013, a counter-affidavit has been filed on behalf of respondent No.1. As the issue relating to allocation of marks for interview is common in all the four cases, there is no need for filing separate counter-affidavits in the other three cases. As regards the question relating to making reservations in favour of different subcategories of B.C. community, in the view this Court is proposing to take, filing of counter-affidavits by the respondents on this aspect may not be necessary. The petitioners were earlier appointed as fair price shop dealers on permanent basis. As the very notifications under which they were appointed were set aside, on the ground that reservations were not followed, their appointments were cancelled. However, they are being continued on temporary basis till regular appointments are made. As noted hereinbefore, the main grievance of the petitioners pertains to allocation of 50% of marks for interview, as envisaged in G.O.Ms.No.4, Consumer Affairs, Food and Civil Supplies (CS.I) Department, dated 19.02.2011, as amended by G.O.Ms.No.39, Consumer Affairs, Food and Civil Supplies (CS.I) Department, dated 22.09.2012. It is the pleaded case of the petitioners that allocation of 50 marks for interview out of the total prescribed marks of 100 gives raise to abuse and arbitrary exercise of discretion by the appointing authority. Sri A.Prabhakar Rao and Sri S.Rahul Reddy, the learned counsel for the petitioners in the respective Writ Petitions, submitted that G.O.Ms.No.4, dated 19.02.2011, fell for consideration of this Court in Writ Petition No.3553 of 2012 and batch. This Court in judgment, dated 24.02.2012, reported in Jinka Chinna Tirupelaiah V. Government of Andhra Pradesh ( 2012(5) ALD 48 ), while disposing of the said cases, unequivocally disapproved allocation of such high marks as 50 out of 100 for interview, and made a categorical observation that the State Government should consider fixing the marks for interview as ‘20’ or at best ‘25’, when the written test is conducted for 50 marks. The learned counsel pointed out that instead of reducing the marks as directed by this Court, respondent No.1 has issued G.O.Ms.No.39, dated 22.09.2012, by apportioning 50 marks prescribed for interview in G.O.Ms.No.4 under three different heads. They submitted that G.O.Ms.No.39 is, thus, in derogation of and contrary to the direction issued by this Court and that prescription of 50% of the total marks for interview is in the teeth of the various judicial pronouncements. Sri A.Prabhakar Rao, the learned counsel for the petitioners in W.P.Nos.7022, 7440 and 7907 of 2013, further submitted that sub-categorisation of B.C. community in the absence of any Rule cannot be sustained. The learned Assistant Government Pleader for Civil Supplies, while opposing the above submissions, placed heavy reliance on the counter-affidavit filed in Writ Petition No.7261 of 2013, wherein the respondents sought to justify prescription of 50 marks, inter alia, on the ground that the fair price shop dealership is operated on the basis of principal and agent relationship between the Government and the dealer; that the practical skills and knowledge of the dealer are more important than his theoretical knowledge; and that therefore, the Government has decided to retain 50 marks for oral test. I have carefully considered the submissions of the learned counsel for the parties and perused the record. In G.O.Ms.No.4, dated 19.02.2011, comprehensive guidelines for selection and appointment of fair price shop dealers under the Andhra Pradesh State Public Distribution System (Control) Order, 2008, have been framed. Clause-2 of Annexure to the said G.O., provided for the method of selection, as per which, written test followed by the interview has to be held. 50 marks each have been allocated to the written test and the interview. Some persons aggrieved by the prescription of 50 marks for interview, approached this Court by way of Writ Petitions. After a comprehensive consideration, this Court in its judgment in Jinka Chinna Tirupelaiah (supra) referred to the relevant case laws and held as under: “While one cannot discount completely the acceptability of an oral interview test, but at the same time, the principle that it must bear a reasonable proportion to the assessment made at the written test should not be lost out. In the instant case, as many as 50 marks are allocated for the oral interview test, while 50 marks are allocated for the written test. In the instant case, as many as 50 marks are allocated for the oral interview test, while 50 marks are allocated for the written test. Therefore, allocating 50 marks to the oral interview test appears to be on a very higher side. It is therefore, appropriate, that the State Government should consider fixing the marks for the interview as 20 or at best 25 when the written test is conducted for 50 marks.” Purporting to follow the above judgment, respondent No.1 issued G.O.Ms.No.39, dated 22.09.2012. As noted herein before, instead of reducing the marks proportionately in the light of the findings rendered by this Court, respondent No.1 has retained 50 marks for interview, while apportioning the same under separate heads which are as under: “(a) 15 marks for financial strengths; (a) 15 marks for customer relations ability; and (b) 20 marks for managerial ability” The issue as to what could be the reasonable percentage of marks for interview in a selection process comprising written test and interview is no longer res integra. The Apex Court on more than one occasion dealt with this aspect and had consistently expressed a view that the percentage of marks to be allocated for interview must be as minimal as possible. To cite a few, in Ashok Kumar Yadav Vs. State of Haryana ( AIR 1997 SC 454 ), the selections and appointments made by the Haryana Public Service Commission were set aside by the Punjab and Haryana High Court on various grounds, including that the members of the Commission were not people of high integrity and that the selections were vitiated by personal bias and arbitrariness. Another ground of interference was that the percentage of marks allocated for interview i.e., 33.3 in case of ex-service officers and 22.2 in case of other candidates was so high as to given scope for arbitrary selections. While holding that the observations and findings of the High Court on the integrity and suitability of the Members of the Public Service Commission were not based on any material, the Apex Court declined to interfere with the selection process on the ground that the percentage of marks earmarked for the interview were high, as the said percentages were fixed from the inception and that on that ground alone the selections cannot be set aside. It is, however, noteworthy that the Apex Court has made certain critical observations in this regard and has also opined that the percentage of 12.2 fixed by the Union Public Service Commission in case of selections to the Indian Administrative Services and other allied services in viva voce test is ideal and reasonable. It is instructive to reproduce these observations contained in Para 30 of the judgment hereunder: “Now if the allocation of such a higher percentage of marks as 33.3 in case of ex-service officers and 22.2 in case of other candidates for the viva voce test is excessive as held by us, what should be the proper percentage of marks to be allocated for the viva voce test in both these cases. So far as candidates in the general category are concerned, we think that it would be prudent and safe to follow the percentage adopted by the Union Public Service Commission in case of selection to the Indian Administrative Services and other allied service is 12.2 and that has been found to be fair and just, as striking a proper balance between the written examination and the viva voce test. We would therefore direct that hereafter in case of selections to be made to the Haryana Civil Services (Executive Branch) and other allied services, where the competitive examination consists of a written examination followed by a viva voce test, the marks allocated for the viva voce test shall not exceed 12.2 percent of the total marks taken into account for the purpose of selection.” (Emphasis added) In Nishi Mughu Vs. State of Jammu and Kashmir ( AIR 1980 SC 1975 ), it is held as under: “Reserving 50 marks out of a total of 150 for interview for admission into MBBS Course is arbitrary.” In Ajay Hasia Vs. State of Jammu and Kashmir ( AIR 1980 SC 1975 ), it is held as under: “Reserving 50 marks out of a total of 150 for interview for admission into MBBS Course is arbitrary.” In Ajay Hasia Vs. Khalid Mujib Sehravardi ( AIR 1981 SC 487 )it is held as under: “If the marks allocated for the oral interview do not exceed 15% of the total marks and the candidates are properly interviewed and relevant questions are asked with a view to assessing their suitability with reference to the factors required to be taken into consideration, the oral Interview Test would satisfy the criterion of reasonableness and non-arbitrariness.” Applying the principles that are deducible from the decided case law discussed above, it needs to be held that allocation of 50% of marks for interview can by no means be considered reasonable. However, respondent No.1, as mentioned herein before, has tried to justify prescription of 50 % of marks for interview on the ground that the relationship between the Government and the dealer is that of principal and agent and that, therefore, the practical knowledge of the candidate needs to be assessed. In my opinion, this distinction pleaded by the respondents is nonest in law. It is trite that the duties of a fair price shop dealer are not more onerous than that of a person holding public employment. Even in cases relating to public employment, where the candidates selected and appointed have to discharge duties involving higher efficiency and far more responsibility than a fair price shop dealer, the Apex Court has in unequivocal terms held that the percentage of marks prescribed for interview must be as low as possible. The ratio behind these judgments is the higher the marks for interview, more will be the scope for arbitrary exercise of discretion by the appointing authority. A candidate with a superior merit who secures highest marks in the written test may not, eventually, be selected as, there is every scope for allocating the highest possible marks in the interview in favour of a candidate who has not performed well in the written test. Higher marks for interview will increase the element of subjectivity and reduce the scope for objectivity in the selection process. Higher marks for interview will increase the element of subjectivity and reduce the scope for objectivity in the selection process. Therefore, the artificial distinction sought to be introduced by the respondents between the selections relating to public employment and that for the fair price shop dealerships cannot, therefore, be accepted. In my considered opinion, the same ratio which has been laid down by the Courts in the matter of public employment would equally apply for any selection undertaken by the State and the fair price shop dealership can be no exception to this rule. Indeed, this Court has conclusively pronounced upon this aspect while examining the validity of G.O.Ms.No.4, dated 19.02.2011. Short of quashing the said G.O., this Court in no uncertain terms has deprecated allocation of 50 % of marks for interview under the said G.O. and has left it to respondent No.1 to fix the marks for interview at 20 with the upper limit at 25. In all fairness, respondent No.1 ought to have followed this judgment. It is not the pleaded case of the respondents that the judgment of this Court in Jinka Chinna Tirupelaiah (1st supra) has been questioned in appeal. Far from that, respondent No.1 has purported to follow the same by making a reference to it in G.O.Ms.No.39, dated 22.09.2012. Respondent No.1 seems to be labouring under a misnomer that if the allocated 50 marks for interview are divided under three different heads, the discretion of the appointing authority can be curtailed. In reality, allocation of marks under the three heads may not completely avoid arbitrariness and subjectivity of the appointing authority. For example, no guidelines have been prescribed as to how the appointing authority will assess and allocate the marks under the heads –“Customer relations ability” and “Managerial ability”. Each appointing authority will adopt his own method in allocating the marks under these two heads. Even for the head “Financial strengths”, for which 15 marks have been allocated, no operating guidelines have been issued. This Court shall not be understood as taking a view that with the operating guidelines, the allocation of 50% of marks for interview can be sustained. Either way, this Court is of the firm opinion that allocation of 50% of marks for interview is anathema to Article 14 of the Constitution of India which strikes at arbitrariness and ensures equality among its citizens. Either way, this Court is of the firm opinion that allocation of 50% of marks for interview is anathema to Article 14 of the Constitution of India which strikes at arbitrariness and ensures equality among its citizens. It also destroys fairness and transparency giving raise to unbridled discretion to the appointing authorities to select the persons of their choice. With respect to the submission of Sri A.Prabhakar Rao, relating to sub-categorization among the B.C. Community, the learned Assistant Government Pleader for Civil Supplies placed before the Court a copy of Circular bearing CCS.Ref.No.N4/4362/2011, dated 28.09.2011, issued by the Commissioner of Civil Supplies, A.P., Hyderabad, wherein he has instructed all the Collectors (CS)/CRO, Hyderabad, to prepare the hundred point roster following the rule of reservation indicated in G.O.Ms.No.4, dated 19.02.2011, while fixing the roster. The said G.O. provided for communal reservations to be followed while filling up the fair price shop dealer vacancies. Even though the said G.O. does not refer to subcategorization among the reserved categories, the Commissioner, Civil Supplies drawing the analogy of Rule 22(2) (E) (e) of the A.P.State and Subordinate Service Rules, 1996, has issued the above-mentioned directions. The sub-categorization among the reserved categories is well recognized in the State and subordinate services. Even in the absence of a statutory provision, if the same system is followed by drawing the analogy, such an action would serve the interests of the sub-categories among the reserved categories. The writ petitioners have no vested right to question such an action. Once hundred point roster is directed to be followed on the same lines as envisaged by the A.P.State and Subordinate Service Rules, 1996, it will ensure that the sub-categories of reserved categories will be allotted their due share. As such, I do not find any merit in this submission of the learned counsel for the petitioners. For all the above-mentioned reasons, I am of the opinion that allocation of 50% of marks for interview cannot be sustained and the impugned notifications along with G.O.Ms.No.4, dated 19.02.2011, to the extent it pertains to allocation of 50% of marks for interview, as amended by G.O.Ms.No39, dated 22.09.2012, are quashed. As respondent No.1 failed to fix the marks in accordance with the directive issued by this Court earlier, I find it imperative to direct it to fix 20 marks for the interview, while apportioning 80 marks for the written test. As respondent No.1 failed to fix the marks in accordance with the directive issued by this Court earlier, I find it imperative to direct it to fix 20 marks for the interview, while apportioning 80 marks for the written test. Respondent No.1 is directed to issue a fresh G.O., fixing the percentage of marks as directed above, reframing the guidelines and undertake fresh selection process by issuing fresh notifications thereafter. The Writ Petitions are, accordingly, allowed to the extent indicated above. As a sequel to disposal of the Writ Petitions, the WPMPs, if any, pending, are disposed of as infructuous.