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Judgment
Nainar Sundaram, J.—These writ petitions are by the non-selectees with regard to the posts of District Munsif, hereinafter called the posts,
the selection in respect of which was done in May-June, 1988. The non-selectees in the case of W.P. Nos. 7480, 7518, 7993, 8166, 8534 and
8708 of 1988 are the members of the Bar. The non-selectees in the case of W.P. Nos. 8834 of 1988 and 162 of 1989 are service candidates.
The quota for the Bar was 70 out of 128 vacancies; the balance 58 vacancies having had been required to be filled up by recruitment by transfer
from amongst service candidates.
The grounds of attack or in other words, the grounds of grievance over the non-selection are being expressed in the following manner : Firstly, it
is contended that during the time of interview or oral examination, held for the selection for the posts, the Chairman of the Tamil Nadu Public
Service Commission, hereinafter referred to as the Commission, was not in office at all, he having gone on leave and on account of the absence of
the Chairman of the Commission, the selection process gone through oral examination, was incompetent and stood vitiated. There is a controversy
with reference to the actual period during which the Chairman of the Commission went on leave. But, that aspect is not of much consequence,
once the principle is settled over the same. To appreciate the submissions made by the learned Counsel for the non-selectees, we are obliged to
refer to the concerned Articles in the Constitution of India as well as the rules and Regulations that could be relevantly looked into on this question.
Article 315 speaks about the Public Service Commission for each State. Article 316 speaks about the appointment of the Chairman and other
Members of the Public Service Commission of a State. Article 316(1A), which is being very much relied on by the learned Counsel for the non-
selectees, reads as follows:
(1-A) If the office of the Chairman of the Commission becomes vacant or if any such Chairman is by reason of absence or for any other reasons
unable to perform the duties of his office, those duties shall, until some person appointed under Clause (1) to the vacant office has entered on the
duties thereof or, as the case may be, until the Chairman has resumed his duties, be performed by such one of the President, in the case of the
Union Commission or a Joint Commission, and the Governor of the State in the case of a State Commission, may appoint for the purpose.
Article 318 contemplates making of regulations determining the number of Members of the Commission, number of members of the staff of the
Commission and their condition of service. Article 320(3) days down that it shall be the duty of the Commission to conduct examinations for
appointment to the services of the State. Article 320(3) speaks about consultation with the Commission on specified matters. Article 234
specifically speaks about appointments of persons other than District judges to the Judicial Service of a State. Since this Article will have reference
to the posts, it needs extraction as follows:
Appointments of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with
rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in
relation to such State.
There are special rules made pursuant to this Article, and they bear the nomenclature of the Tamil Nadu State Judicial Service Rules, and they shall
hereinafter be referred to as the Special Rules. Rule 5 of the Special Rules is relevant, since it relates to the posts, and it reads as follows:
Preparation of approved list of candidates : The Tamil Nadu Public Service Commission, after holding such examinations, if any, as the
Governor may think necessary shall, from time to time, out of the candidates for appointment to posts of District Munsifs in the State, make a list
or lists of the persons considered fit for appointment thereto in accordance with the rules and regulations as may, from time to time, be made by
him.
Rule 5 of the Special Rules, as we could see from the above extract, calls upon the Commission to hold examinations and make, a list or lists of
persons considered fit for appointment to the posts.
There are what is called the Tamil Nadu Public Service Commission Regulations, 1954, hereinafter referred to as the regulations, which have
come to be formulated pursuant to powers conferred by Article 318 and the proviso to Article 320(3). Regulation 2(b) says ''Commission'' means
the Tamil Nadu Public Service Commission. Regulation 2(c) says ''Member'' means Member of the Commission and includes the Chairman
thereof. Regulation 3 says that the Commission shall consist of a Chairman and the specified number of other Members.
There are Tamil Nadu Service Commission Rules of Procedure, hereinafter referred to as the rules, and the relevant Rules have to be adverted
to, for the purpose of assessing the contention that without the Chairman, the Commission could hot function to go through the selection process by
holding examinations. Rules 9, 10, 11, 12, 13 and 13-A (as amended on 10.5.1988) are relevant and they run as follows:
In the exercise of its functions under Clause (3) of Article 320 of the Constitution of India the Commission shall observe the rules, if any, made
by the State Government regarding the Constitution of, or recruitment to, the State or Subordinate Service concerned.
Every question at a meeting of the Commission shall be determined by a majority of the votes of the members present and voting on the
question, and in the case of an equal division of votes, the Chairman shall have and exercise a second or casting vote.
If the Chairman is unable to be present at a meeting of the Commission, he shall appoint one of the other Members to act for him, and the
members so appointed shall have all the powers of the Chairman at that meeting : Provided that, unless the Chairman otherwise directs, no action
shall be taken upon any decision arrived at in a meeting at which he was not present until he has been informed of such decision; and upon being so
informed, he may direct that any such decision shall be reconsidered at a meeting at which he is present.
The proceedings of the Commission shall not be invalidated by reason of any vacancy in the office of the Chairman or other Member.
The quorum for a meeting of the Commission shall be two-thirds of the members, including chairman in position, but the Chairman may adjourn
any business at a meeting if he is of opinion that it cannot conveniently be transacted owing to the non-attendance of any Member.
13-A The Commission may, subject to such directions as it may think fit, delegate to the individual Member or to a Committee constituted from
among its Members, any of its functions under the Constitution; Provided that the Chairman shall nominate the member or Members who will
constitute the selection Board/Boards.
From a reading of none of the above provisions of the Constitution or the Specific Rules, or the regulations or the rules, we are persuaded to
say (hat the absence of the Chairman will make the Commission a defunct body incapable of transacting any business either internally or with
reference to the process of selection to the services by holding examinations. Article 316(1A) contemplates a vacancy in the office of the Chairman
of the Commission or inability of the Chairman to perform the duties of his office by reason of his absence or for any ether reason and in such a
contingency the Article says that the Governor of the State may appoint one or the other Members of the Commission to perform those duties.
But, without the Chairman of the Commission, there could not be a process of selection through conduct of examinations by the Commission is a
proposition that could not be straightway spelt out from this Article, relied on by the learned Counsel for the non-selectees.
Article 320(1), as already noted, says that it shall be the duty of the Commission to conduct examinations for appointment to the services of the
State. Article 320(3), as noted above, speaks about consultation with the Commission on specified matters, and they are stated in clauses
occurring therein which take in, as per Clause (a), matters relating to methods of recruitment to civil services and for civil posts and as per Clause
(b) principles to be followed in making appointments to civil services and posts. The scope of Article 234 is plain and may not admit of any
ambiguity or permit any expansion of the same beyond its explicit language. It lays down that the Rules have to be made by the Governor of the
State to govern appointments of persons other than District Judges to the Judicial Service of a State and such rules should be made by him after
consultation with the State Public Service Commission and with the High Court, exercising jurisdiction in relation to such State. This Article does
not, by its express terms, refer to the Chairman of the Commission and the Commission getting disabled by the absence of the Chairman.
None of the regulations Specifically lays down that the absence of the Chairman will make the Commission a defunct body. The Special Rules
and in particular Rule 5 thereof is not helpful to the non-selectees to support their theory that without the Chairman, the Commission could not
discharge its obligations and functions under that Rule. Coming to the rules, Rule 9 speaks about the observance by the Commission of the rules, if
any, made by the State Government regarding the constitution of or recruitment to the services referred to. Rules 10 to 13 deal with the internal
meeting of the Commission. While dealing with the meeting of the Commission, where voting should take place with regard to the subject matter of
the internal business of the Commission, Rule 11 enables the Chairman to appoint one of the other Members to act for him. Rule 12 says that y the
proceedings of the Commission shall not be invalidated by reason of any vacancy in the office of the Chairman or other Member. Rule 13 lays
down the quorum from a meeting of the Commission which shall be two-thirds of the members, including the Chairman in position and it does not
say that without the Chairman there shall not be a meeting of the Commission. With regard to the process of selection, Rule 13-A, as amended on
10.5.1988, alone is relevant and by its terms, it contemplates that the Commission may delegate to an individual Member, any of its functions
under the constitution and further the Chairman shall nominate the member or Members to go to constitute the selection Board/Boards. Nowhere
in the rules, it is stated that the Commission could function, discharge its obligation and perform its duties only through and with the presence of the
Chairman. The functions will also take in the process of selection through conduct of examinations. Hence, we are not able to appreciate accept
the first contention put forth by the learned Counsel for the non-selectees.
Secondly, it is contended that the entire body of the Commission should act and should have acted on the question of selection of the candidates
for the posts. We have already seen that the role of the Commission as per Article 320(1) is to conduct examinations for appointments to the
service of the State. Rule 5 of the Special Rules, formulated pursuant to powers under Article 234 enjoins upon the Commission to hold the
examinations and make a list or lists of the persons considered fit for appointments to the posts. The factual position that we are able to get from
the records produced is, the entire body of the Commission with its total strength did not take part in this process. But the n the question is, will this
vitiate the process of selection for the posts, gone through in the instant case. Neither the Constitution nor the regulations, nor the Special Rules,
nor the rules contemplate that the entire body of the Commission with its total strength should act with reference to the conduct and holding of
examinations. As already seen, Rule 13-A contemplates an individual Member or a Committee of Members of the Commission, functioning for
and on behalf of the Commission and discharging the duties and obligations. The vires of the rule is not being put in issue in these cases. It is
expressed by the learned Counsel for the non-selectees that though the Commission may delegate its functions to one of its Members or a
Committee of its Members, yet the final deliberations with reference to selection and approval of the list or lists must be done by the entire body of
the Commission. In the face of Rule 13-A and in the absence of any specific provision enjoining upon the entire body of the Commission with its
total strength to deliberate over the making of the list or lists of approved candidates after the examinations are held, we would be putting a
premium on the functions, of the Commission through delegation to one of its Members of a Committee of its Members, if we say, that the entire
body of the Commission should function in the drawing up of the approved list or lists. In this behalf, learned Counsel for the non-selectees drew
our attention to the pronouncement of the Supreme Court in State of Jammu and Kashmir Vs. Mrs. Raj Dulari Razdan and Others, , where
Section 133(2) of the Constitution of Jammu and Kashmir, which is similar to Article 320(3)(b) of the Constitution of India, was construed and the
method of selection through a Committee of Members of the Public Service Commission was approved. However, there is an observation that the
Commission should reserve to itself the right to approve or disapprove the Committee''s report and actually discharge that Constitutional
responsibility. It was found that there was such an approval. In that decision, there was no occasion to construe rules of the present nature and
hence that pronouncement is distinguishable. Learned Counsel for the non-selectees would also, in this connection, refer to the pronouncement of a
Bench of this Court in T.O.M. Sariba Bagum v. The Government of Tamil Nadu (1985) 2 Writ L.R. 137 where, while dealing with a case under
the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the method of obtaining the opinion of the members of
the Advisory Board individually and acting according to the majority opinion was deprecated and it was said that the Advisory Board has to
function as one unit and the decision will have to be arrived at consensus. Here again, this case is distinguishable because the Bench of this Court
had no occasion to deal with the rules of the present nature, which permit functioning of the Commission through an individual Member or a
Committee of its Members. In fact, in State of Rajasthan v. Bhatia 1976 Lab J.C. 1603the very case relied on by the learned Counsel for the non-
selectees, a Bench of the High Court of Rajasthan countenanced a provision permitting the powers, duties and functions of Rajasthan Public
Service Commission, being performed through one or more of its members, and that too by retrospective legislation. The other pronouncement in
Registrar, High Court of Madras Vs. R. Rajiah, , is also distinguishable, because there was no rule cognizing delegation. Hence, the second
contention is repelled.
The third ground urged by the learned Counsel for the non-selectees is that in the matter of appointments to the posts, there ought to be a
consultation both with the Commission and the High Court by the Governor and these bodies could not have a less significant role confining them
only to the process of selection and drawing up the list or lists and not with reference to actual appointments. The inspiration for this ground has
been drawn from Article 234 of the Constitution of India, the language of which has been already noted. But, in our view, this inspiration is the
result of a misconception and misconstruction of the import and implications of this Article. The consultation required under this Article is only with
reference to the rules to be made by the Governor of a State and not with reference to the very appointments. The appointments will be made by
the Governor. The endeavour of the learned Counsel for the non-selectees to put a different interpretation on this Article to say that it contemplates
the consultation by the Governor with the Commission and the High Court for making the very appointments to the posts cannot be countenanced.
Rajagopala Ayyangar, J. as he then was in N. Devasahayam Vs. State of Madras and Others, : accepted the interpretation on this Article that the
consultation, referred to in this Article, is only in relation to the making of the rule in the following terms :
The absence of a comma, or other punctuation mark in the Article which could serve to specify ''the appointment'' as the event which requires the
consultation appeared to me very significant. In the absence of any punctuation mark the grammar of the Article seemed to point to the consultation
referred to toeing in relation to the making of the rule.
We are in respectful agreement with the above interpretation. It was also indicated by the learned Counsel for the non-selectees that Clause (a) of
Article 320(3) speaks about consultation with the Commission on all matters relating to methods of recruitment to Civil Services and for Civil
Posts, and Clause (b) of Article 320(3) speaks about consultation with the Commission on the principles to be followed in making appointments to
Civil Services and Posts, and this consultation must be done for the very making of appointments. First of all, it is not permissible to read something
into this Article which is not explicit there. Even otherwise, the provisions of this Article have been construed to be not mandatory and non-
compliance with them have been held not to afford a cause of action to the person concerned in a Court of Law. Vide State of U.P. Vs.
Manbodhan Lal Srivastava, ; and Ram Gopal Chaturvedi Vs. State of Madhya Pradesh, . Thus, we are obliged to repel the third ground of attack
put forth by the learned Counsel for the non-selectees.
Fourthly, it is contended by the learned Counsel for the non-selectees that this Court, in whatever role assigned to it, must function as a whole
body and in the instant case that did not happen. It must be pointed out that strictly speaking, neither by the force of the Constitutional provisions,
nor by the force of the Special Rules, this Court is supposed to take part in the process of holding examinations and thereafter making a list or lists
of the approved candidates for the posts. It is only by virtue of the rules, there is an invitation extended by the Commission to a Judge or Judges of
this Court to take part in the selection process, Here again, it is not possible to read something into the provisions, which is not there to say that the
entire strength of this Court should be there in the process of selection.
The fifth contention raised by the learned Counsel for the non-selectees is that there ought to have been a conduct of written examinations; and
the holding of oral examinations alone, as happened in the instant case, could not be commended and deprecating that the entire selection must be
struck down by this Court. According to the learned Counsel for the non-selectees, the holding of the written examinations alone will prove an
effective measure for the selection. It is contended that written examination is a process conducive to proper selection. This submission, if properly
assessed in the light of the pronouncements of the highest court in the land, cannot be accepted.
13 In State of Andhra Pradesh Vs. Sree Rama Rao, , the validity of the orders made by the Government of Mysore in respect of admissions to
Engineering and Medical Colleges in the State of Mysore, was questioned, arid there was broad argument that Selection by interview is inherently
repugnant to the doctrine of equality embodied in Article 14 of the Constitution of India and this is how, the Supreme Court dealt with the question.
But learned Counsel for the appellants raised a larger question that selection by interview is inherently repugnant to the doctrine of equality
embodied in Article 14 of the Constitution, for, whatever may be objective tests laid down, in the final analysis the awarding of marks is left to the
subjective satisfaction of the selection Committee and, the before, it gives ample room for discrimination and manipulation. We cannot accept such
a wide contention and condemn one of the well accepted mode of selection in educational institutions. James Hart in his ''An Introduction to
Administrative Law'' observes, at page 180 thus:
A test or examination, to be competitive, must employ an objective standard of measure. Where the standard or measure is wholly subjective to
the examiners, it differs in effect in no respect from an uncontrolled opinion of the examiners and cannot be termed competitive."" In the field of
education, there are divergent views as regards the mode of testing the capacity and calibre of students in the matter of admission to Colleges.
Orthodox educationists stand by the marks obtained by a student in the annual examination. The modern trend of opinion insists upon other
additional tests, such as interview, performance in extra curricular activities, personality test, psychiatric tests etc. Obviously we are not in a
position to judge which method is preferable or which test is the correct one. If there can be manipulation or dishonesty in allotting marks at
interviews, there can equally be manipulation in the matter of awarding marks in the written examinations. In the ultimate analysis, whatever method
is adopted, its success depends on the moral standards of the members constituting the selection Committee and their sense of objectivity and
devotion to duty. This criticism is merely a reflection on the examiners than on the system itself. The scheme of selection, however, perfect it may
be on paper, may be abused in practice. That it is capable of abuse is not a ground for quashing it. So long as the order lays down relevant
objective criteria and entrusts the business of selection to qualified persons, this Court cannot obviously have any say in the matter.
It was pointed out by the Supreme Court in Minor A. Peeriakaruppan and Sobha Joseph Vs. State of Tamil Nadu and Others, .
In most cases, the first impression need not necessarily be the best impression, but under the existing conditions, we are unable to accede to the
contentions of the petitioners that the system of interview as in vogue in this country is so defective as to make it useless.
In Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, , after recapitulating what has been said in its above pronouncements, the
Supreme Court, on the question of validity of viva voce examination as a permissible test for Selection of candidates for admission to a college,
observed as follows:
It is the before not possible to accept the contentions of the petitioners that the oral-interview test is so defective that selecting candidates for
admission on the basis of oral interview in addition to written test must be regarded as arbitrary. The oral interview test is undoubtedly not a very
satisfactory test for assessing and evaluating the capacity and calibre of candidates, but in the absence of any better test for measuring personal
characteristics and traits, the oral interview test must, at the present stage, be regarded as not irrational or irrelevant though it is subjective and
based on first impression, its result is influenced by many uncertain factors and it is capable of abuse. We would, however, like to point out that in
the matter of admission of colleges or even in the matter of public employment, the oral interview test as presently held should not be relied upon as
an exclusive test but it may be resorted to only as an additional or supplementary test and more over, great care must be taken to see that persons
who are appointed to conduct the oral interview test are men of high integrity, calibre and qualification.
In Lila Dhar Vs. State of Rajasthan and Others, , it was pointed that the Cases in Minor A. Peeriakaruppan and Sobha Joseph Vs. State of
Tamil Nadu and Others, and Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, , were cases of admission to Colleges and the
provision for marks by interview test need not and cannot be the same for admission to colleges and entry into public services. In that context, it
was observed.
On the other hand, in the case of services 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 recruitments being satisfied. To subject such persons to a written
examination may yield unfruitful and negative results, apart from its being an act of cruelty to those persons. 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. It must vary from service to service according to the requirements 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 a 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.
In Ashok Kumar Yadav and Others Vs. State of Haryana and Others, commending the propriety of holding oral test in the matter of
recruitment to public services, this is what has been observed :
It is now admitted on all hands that while a written examination assesses the candidates knowledge and intellectual ability, a viva voce that seeks to
assess a candidate''s overall intellectual and personal qualities. While a written examination has certain distinct advantages over the viva voce test,
there are yet no written tests which 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. Some of these qualities can be evaluated perhaps with some degree of error, by a viva voce
test, much depending on the constitution of the interview Board.
Glenn Stahl has pointed out in his book on public personal Administration that the viva voce test does suffer from certain disadvantages such as the
difficulty of developing a valid and reliable oral test, the difficulty of securing a reviewable record of an oral test and public suspicion of the oral test
as a channel for the exertion of Political influence and, as pointed out by this Court in Ajay Hasia''s case AIR 1981 S.C. 487, also of other
corrupt, nepotistic or extraneous considerations, but despite these acknowledged disadvantages, the viva voce test has been used increasingly in
the public personnel testing and has become an important instrument whenever tests of personal attributes are considered essential. Glenn Stahl
proceeds to add that no satisfactory written tests have yet been devised for measuring such personnel characteristics as initiative, ingenuity and
ability to elicit co-operation, many of which are of prime importance. When properly employed, the oral test today deserves a place in the battery
used by the technical examiner, ""There can the before be no doubt that the viva voice test performs a very useful function in assessing personnel
characteristics and traits and in fact, tests the man himself and is the before regarded as an important tool along with the written examination.
Reliance was placed before us on the following definition annexed to the expression ''examination'' in the Law Lexicon -P. Ramanatha Aiyar,
Reprint Edition 1987:
examination A weighing, balancing, search, minute inspection; investigation; inquiry; an investigation made in order to form a judgment.
That definition, though worth noting, is not of any aid at all to find a solution on this contention in favour of the non-selectees. Hence, we cannot
hold, as a universal rule that in the matter of recruitment to public services, written examination is the only method to be adopted.
In the instant case, we have the proviso to Rule 2(ii) of the rules and it contemplates the competitive examination comprising interview only.
Not only that, paragraph 3, as it stood on the date of issuance of the Notification calling for applications to the posts, namely, 15.10.1986 of the
revised Instructions issued to the Commission in G.O. No. 603, Personnel and Administrative Reforms (Personnel-M) Department, dated 12th
June, 1985, hereinafter referred as the revised Instructions, while dealing with services classified as Technical in State Services, which takes in
Tamil Nadu State Judicial Service, lays down that when direct recruitment has to be made to any of the services, which have been classified as
technical, it shall be made on the basis of a competitive examination, comprising only an oral test in the shape of an interview, conducted by the
Commission with the assistance of the Head of the Department concerned or a representative nominated by him. Paragraph3 of the revised
Instructions has been subsequently substituted on 27.11.1987, and the substituted paragraph 3 contemplates the competitive examination,
comprising a written examination and an oral test in the shape of an interview. But on the date of the Notification calling for applications, namely,
15.10.1986, this change was not there. The interview communications issued to candidates, specifically referred to oral test only obviously taking
note of the position at the time of calling for applications. It will not be proper to give a go by to that position and suggest adherence to a
subsequent change, as endeavoured by the learned Counsel for the non-selectees. It would and would have drawn adverse comments. This aspect
is not a procedural one, as opined by the learned Counsel for the non-selectees. It is a norm, and method of selection already declared at the time
of calling for applications and it cannot be changed at the time of examinations. Learned Counsel for the non-selectees would also submit that
under the Special Rules, there ought to have had been holding of written examinations. Rule 5 of the Special Rules, which has relevance to the
posts, does not in terms say that written examinations should be held. Rule 12 of the Special Rules contemplates an examination, or an interview,
to be conducted by the Commission. There was also an attack on the revised Instructions, on the ground that they were formulated by the
Governor, without consultation with the Commission and this Court, as laid down by Article 234 of the Constitution of India. This is a puerile and a
desperate thinking. The Special Rules got formulated pursuant to powers and in accordance with the prescriptions under Article 234 of the
Constitution of India. Rule 5 of the Special Rules empowers the Governor to make rules and regulations for holding such examinations, if any, as
he may think necessary, from time to time. The revised Instructions can fit in and come within such powers. For them, once again there need not be
consultation with the Commission and this Court. Hence, we must hold that it cannot be complained that there was any breach of the provisions of
law with regard to the conduct of the examinations by viva voce only.
Sixthly, learned Counsel for the non-selectees would contend that there were no norms, no questionnaire and no guidelines formulated for oral
interview and the non-formulation of such norms, questionnaire and guidelines vitiates the selection process through oral interview. According to
the learned Counsel for the non-selectees, without the norms, questionnaire and guidelines fixed to steer the oral interview, the oral interview could
not be stated to have proved a standard, common and effective measure to make the proper selections. While examining this contention, we must
once again remember the passage occurring in the pronouncement of the Supreme Court in R. Chitralekha and Another Vs. State of Mysore and
Others, , that,
In the ultimate analysis, whatever, method is adopted its success depends on the moral standards of the members constituting the selection
committee and their sense of objectivity and devotion to duty. This criticism is more a reflection on the examiner than on the system itself.
Furthermore, it is stated by the respondents and there is no rebuttal of the same by the non-selectees that before the commencement of the oral
test, there was a discussion as to how to evaluate the fitness of the candidates, who appear for the interview. The records relating to interview have
been produced before us. The records bear out that before the commencement of the interview, there was a discussion by the members of the
Commission on the method of interview and marking system; and with regard to each candidate marks have been awarded and only on the basis
of the marks awarded, the list of approved candidates has been drawn up. It is stated by the respondents that the assessment of each candidate
was made by the Honourable Judges of this Court, who participated in oral interview. As pointed out in Lila Dhar Vs. State of Rajasthan and
Others, ,
the object of any process of selection for entry into public service is to secure the best and the most suitable person for the job, avoiding patronage
and favouritism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient...public service.
So, open competitive examination has come to be accepted almost universally as the gateway to public services. But the question is how should
the competitive examination be devised? The competitive examination may be based exclusively on written examination or it may be based
exclusively on oral interview or it may be a mixture of both. It is entirely for the Government to decide what kind of competitive examination would
be appropriate in a given case. To quote the words of Chinnappa Reddy, J. In the very nature of things it would not be within the province or even
the competence of the Court and the court would not venture into such exclusive thickets to discover ways out, when the matters are more
appropriately left"" to the wisdom of the experts. It is not for the court to lay down whether interview test...should be held at all or how many marks
should be allowed for the interview test. Of course, the marks must be minimal so as to avoid charges of arbitrariness, but not necessarily always.
There may be posts and appointments where the only proper method of selection may be by a viva voce test. Even in the case of admission to
higher degree courses, it may sometimes be necessary to allow a fairly high percentage of marks for the viva voce test. That is why rigid rules
cannot be laid down in these matters and not by Courts. The expert bodies are generally the best judges. The Government aided by experts in the
field may appropriately decide to have a written examination followed by a viva voce test.
The members of the Commission were aided by experts in the field, in the person of the Honourable Judges of the Apex Court in the State; and in
the absence of better and more scientific materials exposed before us and acceptable to us, to demonstrate that any element of caprice or
arbitrariness entered the process of assessment made by knowledgeable men of high judicial calibre, we cannot frown upon their selection. It is
complained that at the discussion regarding norms all the Honourable Judges of this Court, who participated in the interview were not present. That
is of no consequence at all, because it is not claimed that the said norms were ignored by the other Honourable Judges, when they had occasion to
participate in the interview on the subsequent dates.
The seventh contention is that different Boards conducted interviews on different dates and hence there was no possibility for applying a
common standard for measuring the quality of the candidates. Though there were different Boards, in all the Boards there was participation of the
Honourable Judges of this Court. In the present case, apart from bare allegations, it has not been substantiated to our satisfaction by positive and
acceptable materials that on account of the selection being made by different Boards, the standard adopted by one Committee differed from that
adopted by others and the before the applicants'' ability was not tested by a uniform standard. We have already noted that at the beginning of the
interview, there was a consensus as to how to evaluate the fitness of the candidates, who appear for the interview, the method of interview and
marking system. It is not stated that there was a variation of these norms, whenever there was a change in the selection Board. Furthermore, the
non-selectees were duly put on notice that different Boards were constituted to do the interviewing and non-selectees did not demur and they took
chance and having failed, they are raising this voice of protest. It is only in this context, the plea of waiver and acquiescence is being advanced by
the respondents. We shall advert to this aspect presently.
Eighthly, learned Counsel for the non-selectees would contend that even as per Rule 13-A of the rules, as it stood at the time of calling for the
applications, the selection Board should consist of two Members of the Commission; and only on the eve of the commencement of the interview,
this rule was amended on 10.5.1988 so as to enable the constitution of the selection Board through an individual Member and according to the
learned Counsel for the non-selectees the position, as it prevailed on the date of the calling for the applications above, must prevail. In our view,
the constitution of the selection Board is the business of the Commission and it would not lie in the mouth of any candidate to the posts to say as to
the strength of the selection Board. In the matter of its internal administration and allocation of work, the Commission was and is well within its
powers to make any appropriate constitution of the selection Board depending upon the exigencies it faced. Prior to the date of the
commencement of the interview, Rule 13-A has been amended so as to enable the constitution of the selection Board with an individual Member,
of course, the Honourable Judges of this Court participating by invitation. No cause of any candidate could be stated to have failed or lost on
account of this feature. This objection appears to us to have only an ethical facet without any substance in it.
On behalf of the respondents, Mr. K. Alagiriswamy, learned Advocate General appearing for them, would submit that in respect of the
contentions, put forth on behalf of the non-selectees that written examinations ought to have been held and there ought to have been-only a
common Board, the non-selectees could not raise such a voice before this Court because they had full notice of these factors at all relevant points
of time and yet they participated in the interview without any demur and only after their participation proved a failure they are raising this voice of
protest. In this connection, learned Advocate General brings to our notice the following pronouncements : In Dr. G. Sarana v. University of
Lucknow (1977) 1 L.L.J. 68it was noted that the appellant knew all the relevant facts about the constitution of the selection Committee and he did
not before appearing for the interview raise his little finger against the constitution of the selection Committee and it was opined that having
voluntarily appeared before the Committee and taken his chance of having a favourable recommendation, it was not open to the appellant to
challenge the constitution of the Committee. In I.L. Honnegouda v. The State of Karnataka AIR 1978 S.C. 28 the appellant before the Supreme
Court acquiesced to the rules by applying for the post of the Village Accountant, appearing before the recruitment Committee for interview and
having taken a chance for selection and later he questioned the constitutionality of the rules, it was held that the appellant cannot do that. In Om
Prakash Shukla Vs. Akhilesh Kumar Shukla and Others, , the party had appeared for examination without protest; he moved the petition only after
he realised that he would not succeed in the examination. Even in that contingency, the Supreme Court held that the party should not be granted
any relief. One salient principle, which this Court, exercising jurisdiction under Article 226 of the Constitution of India, takes note of is the party
who complains of any violation of any rule with reference to selection for appointments should not be permitted to raise such a grievance after
having participated and taken his chance in the selection process following only that rule. This will come within the mischief of the rule that the party
should not be allowed to approbate and reprobate. This also comes within the purview of waiver. The communications for the interview fully
notified that only an oral test would be held and that would be before different Boards of Selection. Knowing fully well that such was the position
with reference to the conduct of the examinations for selection, the non-selectees participated in the selection process. After having acquiesced in
that position and after having gone through the process of selection, as per the said position, and now not having come out successful, it is not
permissible for the non-selectees to challenge either the holding of the oral test or the constitution of different Selection Boards.
The learned Advocate General would also advance a contention that in most of the writ petitions, the selectees have not been impleaded and
the selectees are vitally interested and in case the writ petitions are to be allowed, it is only their interest that will be affected and hence this Court,
even assuming that merits have been made out, should not accord any relief to the non-selectees in the absence of the selectees and their voice
being heard in support of their case. In this behalf, learned Advocate General relies on a pronouncement of the Supreme Court in Prabodh Verma
and Others Vs. State of Uttar Pradesh and Others, . However, learned Counsel for the non-selectees would bring to our notice, a pronouncement
of the Bench of this Court in Mohamed Ali, M.N. etc. v. State of Tamil Nadu, etc. 1988 Writ L.R. 1 to say that failure to implead selected
candidates is not a ground to deny relief to the petitioner. We have refrained from going into this aspect in detail, because on merits we have found
that the non-selectees have no case.
No other point was urged before us on behalf of the non-selectees. The result of our above discussion is that these writ petitions fail and they
are dismissed. We make no order as to costs. Today we have disposed of the writ petitions and we direct that the Interview Records be returned
to the learned Advocate General, who produced them earlier. It is further directed that the respondents shall preserve them for a period of six
months, at least, if not for a larger period, if that should be the prescription.