Kamal Singh Rajput vs State Of Chhattisgarh
2022 Latest Caselaw 975 Chatt

                                          W.P.(S)Nos.1291/2021 & 5651/2021

                              Page 1 of 25

                                                                          AFR

           HIGH COURT OF CHHATTISGARH, BILASPUR

                   Writ Petition (S) No.1291 of 2021

                     Order reserved on: 8-2-2022

                    Order delivered on: 23-2-2022

1. Kamal Singh Rajput, S/o Thakur Singh, aged about 28 years, R/o
   Village Bicharpur, Post Sukli, Tahsil Lormi, District Mungeli (C.G.)

2. Rajeev Gupta, S/o Koshor Lal Gupta, aged about 27 years, R/o JMQ
   - 100, Bishrampur, Surajpur (C.G.)

3. Rahul Tiwari, S/o Mahatam Tiwari, aged about 30 years, R/o
   Bramhdev Colony, Ward No.63, Bhatgaon, Behind Danteshwari
   Temple, Raipur, District Raipur (C.G.)
                                                ---- Petitioners

                                 Versus

1. State of Chhattisgarh, Through Secretary, Health and Family Welfare
   Department, Mahanadi Bhawan, Mantralaya, Atal Nagar, Nava Raipur,
   District Raipur (C.G.)

2. Director, Health Services, Directorate, Indrawati Bhawan, Atal Nagar,
   Nava Raipur, District Raipur (C.G.)
                                                           ---- Respondents

                                  AND

                   Writ Petition (S) No.5651 of 2021

1. Dr. Kamal Singh Rajput, S/o Thakur Singh, aged about 28 years, R/o
   Village Bicharpur, Post Sukli, Tahsil Lormi, District Mungeli (C.G.)

2. Dr. Himanshu Dubey, S/o Kiran Kumar Dubey, aged about 28 years,
   R/o Village Tayang, Post Jaimura, Tahsil Kharsiya, District Raigarh
   (C.G.)
                                                       ---- Petitioners

                                 Versus

1. State of Chhattisgarh, Through Secretary, Health and Family Welfare
   Department, Mahanadi Bhawan, Mantralaya, Atal Nagar, Nava Raipur,
   District Raipur (C.G.)

2. Director, Health Services, Directorate, Indrawati Bhawan, Atal Nagar,
   Nava Raipur, District Raipur (C.G.)
                                                           ---- Respondents
                                                          W.P.(S)Nos.1291/2021 & 5651/2021

                                           Page 2 of 25

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For Petitioners: Mr. C. Jayant K. Rao, Advocate. For Respondents / State: -

Mr. Amrito Das, Additional Advocate General and Mr. Jitendra Pali, Deputy Advocate General.

------------------------------------------------------------------------------------------------------

Hon'ble Shri Justice Sanjay K. Agrawal

C.A.V. Order

1. The petitioners of W.P.(S)No.1291/2021 have called in question the

recruitment notice dated 14-10-2020 for 300 posts of Medical Officers

(Class-II) issued by respondent No.2 herein in accordance with the

Chhattisgarh Medical Officers (Gazetted) Service Recruitment Rules,

2013 (for short, 'the Rules of 2013') on the ground that in accordance

with Rule 6(1) of the Rules of 2013, holding of written examination is

mandatory for recruitment on the post of Medical Officer. This Court

by order dated 8-3-2021 stayed the recruitment process and

thereafter, that recruitment process was cancelled by respondent No.2

and thereafter, during the pendency of writ petition, additional vacancy

of 143 posts came into existence and consequently, the earlier

recruitment process initiated by recruitment notice dated 14-10-2020

came to be cancelled and new recruitment notice dated 20-9-2021

was notified for recruitment on the post of 443 Medical Officers which

has been called in question in W.P.(S)No.5651/2021. In that view of

the matter, both the writ petitions have been clubbed together, heard

together and are being disposed of by this common order.

2. Since the recruitment notice dated 14-10-2020 is said to have been

cancelled and new recruitment notice dated 20-9-2021 has been

issued, which has been called in question in W.P.(S)No.5651/2021,

therefore, the facts pleaded in the subsequent writ petition i.e. W.P.(S)

No.5651/2021 are taken for the sake of convenience.

W.P.(S)Nos.1291/2021 & 5651/2021

3. Case of the petitioners is that they have obtained MBBS degree from

Chhattisgarh Institute of Medical Sciences, Bilaspur and Pt. J.N.M.

Medical College, Raipur in the year 2017 and are having requisite

qualification for the post of Medical Officer. Recruitment notice dated

20-9-2021 has been issued to fill up the vacancy of Medical Officer

under the Rules of 2013, which the respondents are conducting

recruitment only on the basis of interview without conducting any

competitive examination which is contrary to Rule 6(1) as well as Rule

11 of the Rules of 2013, as the recruitment process is contrary to Rule

6(1) and only on the basis of interview, recruitment on the post of

Medical Officer cannot be permitted to be conducted and further,

award of marks by Annexure R-1 dated 13-10-2021 by which 40%

marks have been awarded to educational qualification, 15% marks for

knowledge of national programmes, 15% for knowledge of public

health subjects, 25% for experience of working in government

institutions and 5% for personality, is also equally arbitrary, therefore,

the advertisement / recruitment notice dated 20-9-2021 for the post of

Medical Officers be quashed and the respondents be directed to

consider the petitioners for the post of Medical Officer.

4. Return has been filed on behalf of the respondents herein stating inter

alia that considering the available vacancies in the Department, the

respondents decided to make recruitment to the post of Medical

Officers in Class-II to as many as 443 posts for which recruitment

notice dated 20-9-2021 has been issued in order to fill-up the said

posts of Medical Officers so as to provide the State Government with

adequate assistance in discharging the health services during the

COVID-19 pandemic and thereafter also. The recruitment notice was W.P.(S)Nos.1291/2021 & 5651/2021

issued on 20-9-2021 and qualified doctors were required to submit

their candidature by 12-10-2021. Accordingly, petitioner No.2 in W.P.

(S)No.5651/2021 also submitted his application and voluntarily

participated in the said recruitment process, therefore, petitioner No.2

having participated in the recruitment process and at the same time

has laid challenge to the terms and conditions of the said recruitment

process, cannot be permitted to approbate and reprobate at the same

time. It is the case of the respondents that conduct of petitioner No.2

demonstrates that he has taken a calculated chance by participating in

the recruitment process having submitted application and at the same

time having preferred the instant writ petition challenging the very

conditions of the recruitment process under which he has participated.

It is also the case of the respondents that petitioner No.2 has not

disclosed the said fact that he has participated in the said recruitment

process, as such, he is guilty of suppression of material facts and the

writ petition preferred by petitioner No.2 is liable to be dismissed, as

he has not approached this Court with clean hands. It has further

been pleaded that Rule 6 of the Rules of 2013 prescribes method of

recruitment and as stated under the Rules, recruitment to the service

shall be done by direct recruitment through selection. The selection

further has to be done by way of a competitive examination and / or by

way of an interview and method of recruitment to be adopted for the

purpose of filling of the vacancies has to be determined by the

Government on each occasion. It has also been pleaded that

selection can be done either by way of a competitive examination and

interview or by way of an interview in normal circumstances, and

conducting competitive examination is not mandatory in every W.P.(S)Nos.1291/2021 & 5651/2021

situation. It has also been pleaded that in order to reduce the

possibility of arbitrariness, the State Government has passed order

dated 13-10-2021 (Annexure R-1) by which the State Government has

specifically laid down the criteria for award of marks by the Interview

Committee for which five different heads have been setup namely,

1. Educational Qualification 40%

2. Knowledge of National Programmes 15%

3. Knowledge of Public Health Subjects 15%

4. Experience of working in Government institutions 25%

5. Personality 5%

5. It has also been pleaded that the above-stated disintegration of heads

under which marks are to be awarded to the candidates by the

Interview Committee clearly demonstrate that there is apparent

objectivity with which the marks are to be awarded by the Interview

Committee and there is bound to be absolute transparency in the

modality adopted by the respondents for making suitable selection. As

such, there is no element of arbitrariness which can step in while

making the said selection. Accordingly, interview has been scheduled

by constituting 10 to 15 Boards. It has also been submitted that

appointments to the post of Medical Officer are of acute urgency

considering the onslaught of COVID-19 pandemic and the periodic

fluctuations with which the spike in number of patients have been

witnessed till now. As such, the recruitment process being in

accordance with the Rules of 2013, both the writ petitions are liable to

be dismissed. Short rejoinder has been filed by the petitioners after

conclusion of hearing of the writ petitions.

6. Mr. C. Jayant K. Rao, learned counsel appearing for the petitioners in

both the writ petitions, would submit that appointment on the post of W.P.(S)Nos.1291/2021 & 5651/2021

Medical Officer has to be conducted in accordance with the Rules of

2013 and Rule 6(1) of the Rules of 2013 is mandatory and selection

has to be done by competitive examination and interview, it cannot be

by way of interview alone which is apparent from Rule 11(1) of the

Rules of 2013 which states that the examination for recruitment to the

service shall be conducted at such intervals, as the Government may

determine, from time to time. He would further submit that award of

100 marks by way of interview is arbitrary in view of the decision

rendered by the Supreme Court in the matter of Ajay Hasia v. Khalid

Mujib Sehravardi1 as well as Ashok Kumar Yadav and others v. State

of Haryana and others2 and Syed T.A. Naqshbandi and others v. State

of Jammu & Kashmir and others3. Therefore, the recruitment notice

subsequently issued dated 20-9-2021 be quashed being contrary to

the Rules of 2013.

7. Mr. Amrito Das, learned Additional Advocate General, assisted by Mr.

Jitendra Pali, learned Deputy Advocate General, appearing for the

State / respondents, would submit that under Rule 6 of the Rules of

2013, direct recruitment can be made through a selection process

comprising of (a) competitive examination and interview; or (b)

competitive examination only; or (c) interview only, and / or provides

for alternative modes of selection to be decided upon by the State

Government. Interview alone is one of the modes of selection

provided for under the statutory Rules of 2013 which have been

framed by the competent authority in exercise of the powers conferred

by the proviso to Article 309 of the Constitution of India. He would

further submit that strict interpretation to the provision of Rule 6 of the 1 (1981) 1 SCC 722 2 (1985) 4 SCC 417 3 (2003) 9 SCC 592 W.P.(S)Nos.1291/2021 & 5651/2021

Rules of 2013 has to be made as is contained under the Rules of

2013. Stroke ('/') employed in between "and - or" provides for an

option in the alternative to the State Government to choose as

between the modes of selection contained under Rule 6. Stroke ('/')

cannot be read as 'and'. As such, the selection process which is

being conducted only by way of interview read with order dated 13-10-

2021 cannot be taken exception to by the petitioners. Mr. Das,

learned Additional Advocate General, would rely upon the decision of

the Orissa High Court in the matter of Rohit Chauhan v. Chairman,

Admission Sub-Committee, Joint Entrance Examination E & M-2000,

University College of Engineering, Sambalpur4 followed by the

Madhya Pradesh High Court in the matter of Rasal Singh v. Election

Commission of India and others5 to buttress his submissions. Mr.

Das, learned Additional Advocate General, would further submit that

selection process which is being conducted by way of interview read

with order dated 13-10-2021 for the post of Medical Officer is in

accordance with law, as the State Government has laid down a criteria

for award of marks and there are five different heads for award of

marks in which 40 marks out of 100 have been prescribed for

educational qualification, 25 marks have been prescribed for work

experience in government institutions, 15 marks each for knowledge

of National Programmes and knowledge of Public Health subjects and

5 marks on personality. As such, there is apparent objectivity with

which marks are to be awarded by the Interview Committee and there

is absolute transparency in the modalities adopted by the respondents

for making selection on the post of Medical Officer. Mr. Das, learned

4 AIR 2001 Ori 125 5 2015(1) M.P.L.J. 160 W.P.(S)Nos.1291/2021 & 5651/2021

Additional Advocate General, would also submit that interview alone

has been judicially recognised as a mode of selection for appointment

to government service. He would further rely upon the decisions of

the Supreme Court in the matters of Lila Dhar v. State of Rajasthan

and others6, Mehmood Alam Tariq v. State of Rajasthan7, D.V. Bakshi

and others etc. etc. v. Union of India and others 8, Anzar Ahmad v.

State of Bihar9 and Kiran Gupta and others v. State of U.P. and

others10 in support of his contention. Therefore, the writ petitions

deserve to be dismissed.

8. I have heard learned counsel for the parties and considered their rival

submissions made herein-above and also went through the record

with utmost circumspection.

9. In exercise of the powers conferred by the proviso to Article 309 of the

Constitution of India, the Governor of Chhattisgarh made the Rules of

2013 which govern recruitment / appointment to the post of Medical

Officer. Rule 6 of the Rules of 2013 provides method of recruitment.

Rule 7 provides appointment to the service. Rule 8 provides

conditions of eligibility for direct recruitment. Rule 11 provides direct

recruitment by competitive examination and / or interview. For the

sake of convenience, Rules 6 and 7 are being reproduced herein-

below:

"6. Method of Recruitment.-(1) Recruitment to the service, after the commencement of these rules, shall be made by direct recruitment through selection (competitive examination and/or interview).

6    (1981) 4 SCC 159
7    (1988) 3 SCC 241
8    AIR 1993 SC 2374
9    (1994) 1 SCC 150
10   (2000) 7 SCC 719
                                          W.P.(S)Nos.1291/2021 & 5651/2021

(2) Subject to the provisions of these rules, the method or methods of recruitment to be adopted for the purposes of filling any particular post or posts in the service, as may be required to be filled during any particular period of recruitment, and the number of persons to be recruited by each method, shall be determined on each occasion by the Government.

(3) Notwithstanding anything contained in sub-rule (1), if in the opinion of the Government, the exigencies of the service so require, the Government may adopt such method of recruitment to the service, other than those specified in the said sub-rule, as it may, by order issued in this behalf, prescribe.

(4) At the time of recruitment provisions of the Chhattisgarh Lok Sewa (Anusuchit Jation, Anusuchit Janjation Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994 and directions (as amended) issued from time to time, by the General Administration Department of the Government, shall be applicable.

7. Appointment to the Service.-All appointments to the service after the commencement of these rules shall be made by the Government and no such appointment shall be made except after selection by the method of recruitment specified in rule 6."

10. It is the case of the petitioners that the post of Medical Officer is a

Class-II post and related to public health and therefore holding of

competitive examination / written examination is a must and it cannot

be conducted through interview only. Whereas, it is the case of the

respondents / State that Rule 6(1) of the Rules of 2013 envisages that

recruitment to the service can be made by direct recruitment through

selection (competitive examination and/or interview) and Rule 6

provides alternative modes of selection to be decided upon by the

State Government and the State Government has decided the

selection to be conducted through interview which is apparent from

order dated 13-10-2021 keeping in view that doctors are the matured W.P.(S)Nos.1291/2021 & 5651/2021

persons and therefore the post of Medical Officers can be filled up

through interview only.

11. A focused glance of Rule 6 of the Rules of 2013 shows that it provides

method of recruitment. Rule 6(1) provides that recruitment to the

service, after the commencement of these rules, shall be made by

direct recruitment through selection (competitive examination and/or

interview). "Selection" means, the person selected for the post must

be of "merit".

12. In Rule 6(1) of the Rules of 2013, the expression "competitive

examination and/or interview" has been employed by the rule making

authority. In between "competitive examination - interview", the

expression "and/or" has been used. Stroke ('/') is commonly used as

the word substitute "or" which indicates the choice, for example male

or female he or she. As such, the two expressions "and" and "or" are

by-parted by "/", therefore, they are mutually exclusive and alternative

to each other.

13. The dictionary meaning of stroke ('/') is as follows:

Cambridge International Dictionary of English, (Cambridge Low price Editions)

"Oblique (Stroke) (C) Br and Aus.

An oblique (also slash or specialised solidus is a sloping line often used for separating numbers or words: Fractions can be written with oblique strokes, for example 2/3. Every student must hand in her/his (= her or his) completed application form by the end of the week."

Chambers 21st Century Dictionary - 1997 Reprint published by Allied Chambers (India) Ltd.,-

"An oblique" Indicates alternatives - Bring your swimming costume and/or a tennis racquet - Tea/Coffee will be W.P.(S)Nos.1291/2021 & 5651/2021

served - Dear Sir/Madam Each candidate will be required to give a report on his/her research."

14. Similarly, in 6th Edition of Oxford English Mini Dictionary, the stroke ('/')

express as a slanting line / used between alternative. Thus, according

to the dictionary meaning of stroke ('/'), it indicates alternatives /

choices. As such, stroke ('/') between the words "and" and "or"

combining the words "written examination - interview" provides for an

option or an alternative mode of recruitment to the post of Medical

Officer and as such, it is for the State Government to choose option as

between the modes of selection and the selection process can

comprise of three methods namely, (a) competitive examination and

interview; or (b) only competitive examination; or (c) only interview.

The stroke ('/') used between "and" and "or" combining the words

"competitive examination and interview" cannot read as "and".

Furthermore, the stroke ('/') in between the words "and" and "or"

cannot be taken as "and", it always means alternatives and reading

the stroke ('/') as "and" would amount to rendering stroke ('/') as otiose

and would amount to rewriting the statutory Rule 6(1) of the Rules of

2013, which gives the competent authority a choice qua the method of

recruitment and to select either of the methods of recruitment amongst

the three available methods for such recruitment.

15. The Supreme Court in the matter of Ashish Kumar v. State of Uttar

Pradesh and others11 while dealing with interpretation and eligibility

criteria/conditions for the post of Psychologist in the advertisement

which provided "Graduation in Psychology/LT/BT/BEd in subject of

Psychology" as eligibility criterion, held that use of stroke between

graduate and LT/BT/BEd indicates that all were alternate qualifications

11 (2018) 3 SCC 55 W.P.(S)Nos.1291/2021 & 5651/2021

and cannot be read to mean graduate in Psychology with LT/BT/BEd

as held by the High Court and set aside the decision of the High

Court. It has been observed by their Lordships of the Supreme Court

in paragraphs 16, 19 and 21 as under: -

"16. The careful reading of original advertisement which is in vernacular language indicate that what was prescribed was, "In Psychology subject graduate/LT/BT/BEd". Use of stroke between graduate and LT/BT/Bed indicates that all were alternate qualifications. The advertisement cannot be read to mean providing for graduate in Psychology with LT/ BT/Bed as has been read by the High Court and contended by the respondent.

19. ... The advertisement Annexure A - 1 contains qualifications for various posts and in several qualifications stroke (/) has been used. A look into those qualifications clearly indicate that stroke (/) was used in the other qualifications denoting one or either qualification.

21. A perusal of the above qualifications clearly indicated that stroke (/) was used regarding qualifications, in the alternative i.e. one or either. In the above view of the matter, we are of the view that the use of stroke (/) between Graduate/LT/BT/BEd were in the same line meaning thereby one or either. It is relevant to notice that before the aforesaid qualifications, the words "in Psychology subject" has been used as prefix, which clearly means that all the alternative qualifications were required to have with Psychology subject i.e. graduation with Psychology/LT/BT/ BEd in the subject of Psychology. Hence, all the three i.e. graduation, LT/BT/BEd has to be in Psychology subject. Those persons who have done LT/BT/BEd with Psychology subject are eligible like person graduated with Psychology, which is the plain and simple meaning of the advertisement which has been missed by the State as well as the High Court."

16. Reverting to the facts of the case in the light of the aforesaid analysis

and in the light of the interpretative meaning to stroke ('/') given by

their Lordships of the Supreme Court in Ashish Kumar (supra), Rule

6(1) of the Rules of 2013 gives three alternative methods of W.P.(S)Nos.1291/2021 & 5651/2021

recruitment as indicated herein-above and interview is one amongst

them for recruitment on the post of Medical Officer and holding of

competitive examination for recruitment and appointment to the post

of Medical Officer is not necessary, it may be only by interview by

virtue of Rule 6(1) of the Rules of 2013 which gives option to the State

Government and which is further fortified by Rule 7 of the Rules of

2013 which prescribes that all appointments to the service after the

commencement of the Rules of 2013 shall be made by the

Government and no such appointment shall be made except after

selection by the method of recruitment specified in Rule 6.

17. The Supreme Court in Lila Dhar (supra) had already held that

recruitment to public services is regulated by rules made under the

proviso to Article 309 of the Constitution and the courts would not

usurp a function which is not vested in them by redetermining the

appropriate method of selection and the relative weight to be attached

to the various tests, otherwise, it would amount to re-writing the rules,

as such, the method of recruitment selected by the competent

authority can only be by way of interview and scope of interference is

extremely limited. It has been observed by their Lordships in Lila Dhar

(supra) as under: -

"9. ... Ordinarily recruitment to public services is regulated by rules made under the proviso to Article 309 of the Constitution and we would be usurping a function which is not ours, if we try to redetermine the appropriate method of selection and the relative weight to be attached to the various tests. If we do that we would be re-writing the rules but we guard ourselves against being understood as saying that we would not interfere even in cases of proven or obvious oblique motive. ..."

W.P.(S)Nos.1291/2021 & 5651/2021

18. Faced with this situation, Mr. Rao, learned counsel for the petitioners,

would invite my attention to Rule 11 of the Rules of 2013 which

provides Direct Recruitment by Competitive Examination and / or

Interview. Rule 11(1) provides that the examination for recruitment to

the service shall be conducted at such intervals, as the Government

may determine, from time to time. Rule 11(1) would be applicable in

case where the State Government decides to recruit Medical Officers

through competitive examination, it would not be applicable in a case

where the decision has been taken by the State Government to

conduct selection process through interview. Therefore, the

submission of learned counsel for the petitioners in this behalf that

recruitment and appointment on the post of Medical Officer without

holding written examination is illegal, is liable to be and is hereby

rejected.

19. The next submission of Mr. Rao, learned counsel for the petitioners, is

that 100% marks have been reserved for viva voce, which would

enhance the chances of arbitrariness in awarding marks while

selecting Medical Officers, as such it would run contrary to the

principles of law laid down by the Supreme Court in Ajay Hasia

(supra), Ashok Kumar Yadav (supra), Minor A. Peeriakaruppan v.

State of Tamil Nadu and others 12 and therefore the recruitment in

question is ex facie arbitrary and it is liable to be quashed.

20. The question for consideration would be, whether such an award of

marks for interview / viva voce is permissible and in accordance with

law? Before considering the argument so advanced, it would be

12 1971 (1) SCC 38 W.P.(S)Nos.1291/2021 & 5651/2021

appropriate to notice the principle of law laid down by their Lordships

of the Supreme Court in the above-mentioned judgments.

21. In Ajay Hasia (supra), the Supreme Court held that selection by oral

interview in addition to written test is valid, but allocation of above 15

per cent of total marks for interview is arbitrary and unreasonable.

22. Similarly, in Minor A. Peeriakaruppan (supra), their Lordships of the

Supreme Court have frowned upon prescribing higher percentage of

marks for interview, when selection is on the basis of oral interview

and written test.

23. In Ashok Kumar Yadav (supra), selection for the Haryana Civil

Services (Executive Branch) and other Allied Services was made on

the basis of written examination and interview. The Supreme Court

after placing reliance in Lila Dhar (supra) observed as under: -

"23. ... 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. ... 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. ..."

24. However, at this stage, it would be appropriate to refer to the judgment

of the Supreme Court in Lila Dhar (supra). In that case, the impugned

selection for the posts of District Munsifs under the Rajasthan Judicial

Service was made by the Rajasthan Public Service Commission. The

ratio of marks allocated for written test and interview was 75:25. Their W.P.(S)Nos.1291/2021 & 5651/2021

Lordships while distinguishing the decisions in Ajay Hasia (supra) and

Minor A. Peeriakaruppan (supra) held as under: -

"6. ... In the case of admission to a college, for instance, where the candidate's 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 v. State of Tamil Nadu, Ajay Hasia v. Khalid Mujib Sehravardi, and other cases. 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 requirements being satisfied."

25. Their Lordships in Lila Dhar (supra) also held that consideration for

determining the percentage of marks allotted for interview in case of

admission to the academic institution cannot guide recruitment to the

public service and also held that a written examination assesses a

candidate's knowledge and intellectual ability, whereas an interview

test is valuable to assess a candidate's overall intellectual and

personal qualities. It has been observed in paragraphs 5 and 6 of the

report as under: -

"5. ... It is now well recognised that while a written examination assesses a candidate's knowledge and intellectual ability, an interview-test is valuable to assess a candidate's overall intellectual and personal qualities.

While a written examination has certain distinct advantages over the interview-test there are yet no written tests which can evaluate a candidate's initiative, alertness, resourcefulness, dependableness, cooperativeness, 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 may be evaluated, perhaps with some W.P.(S)Nos.1291/2021 & 5651/2021

degree of error, by an interview-test, much depending on the constitution of the Interview Board. ...

6. 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 features 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 candidate's 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 v. State of Tamil Nadu, Ajay Hasia v. Khalid Mujib Sehravardi1 ,and other cases. 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 requirements 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 a 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. 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."

W.P.(S)Nos.1291/2021 & 5651/2021

Their Lordships also held that mode of awarding marks in interview-

test is an administrative function which the courts should not interfere

and observed in paragraph 8 as under: -

"8. The second ground of attack must fail for the same reason as the first ground of attack. The Rules themselves do not provide for the allocation of marks under different heads at the interview-test. The criteria for the interview- test has been laid down by the Rules. lt is for the interviewing body to take general decision whether to allocate marks under different heads or to award marks in a single lot. The award of marks under different heads may lead to a distorted picture of the candidate on occasions. On the other hand the totality of the impression created by the candidate on the interviewing body may give a more accurate picture of the candidate's personality. It is for the interviewing body to choose the appropriate method of marking at the selection to each service. There cannot be any magic formulae in these matters and courts cannot sit in judgment over the methods of marking employed by interviewing bodies unless, as we said, it is proven or obvious that the method of marking was chosen with oblique motive."

26. In the matter of Shri Janki Prasad Parimoo and others v. State of

Jammu and Kashmir and others13 (Constitution Bench) challenge was

against selection for the posts of Headmasters made by the Selection

Committee on the basis of interview. While approving the method of

selection by interview, it was held by their Lordships of the Supreme

Court that when appointment to higher posts was made, it might be

perfectly justified to test the candidate at a properly conducted

interview.

27. In the matter of Dr Keshav Ram Pal, Reader and Head of Sanskrit

Department and Offg. Principal, Lajpat Rai Post-Graduate College,

Sahibabad, Distt. Ghaziabad, U.P. v. U.P. Higher Education Services

13 (1973) 1 SCC 420 W.P.(S)Nos.1291/2021 & 5651/2021

Commission, Allahabad and others14, the Supreme Court considered

the decisions rendered by it earlier in Minor A. Periakaruppan (supra)

and Ajay Hasia (supra) and held that 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 requirements being satisfied and

to subject such persons to a written examination may yield unfruitful

and negative results, apart from it being an act of cruelty to these

persons.

28. The Supreme Court in Anzar Ahmad (supra) held that different

considerations apply for determining the weightage to be given in viva

voce examination for selection in public employment and admission to

an educational institution. It was held as under: -

"8. ... In this context it may be mentioned that the decisions of this Court with regard to the fixation of marks for interview in a selection broadly fall in two categories:

(i) Selection for admission to educational institutions; and

(ii) selection for employment in service."

29. In Anzar Ahmad (supra), their Lordships of the Supreme Court while

dealing with appointments made by the Public Service Commission for

the posts of Unani Medical Officer only on the basis of interview,

wherein the Public Service Commission has prescribed 50% marks for

viva voce and 50% marks for academic performance, upheld the said

selection by observing in paragraph 20 as under: -

"20. In the instant case, we find that the State Government in its letter dated September 20, 1990 has clearly stated that selection should be made on the basis of interview. On the basis of this letter the Commission could

14 (1986) 1 SCC 671 W.P.(S)Nos.1291/2021 & 5651/2021

have made the selection wholly on the basis of marks obtained at the interview. But in accordance with the past practice, the Commission has made the selection on the basis of interview while keeping in view the academic performance and with that end in view the Commission has allocated 50% marks for academic performance and 50% marks for interview. It cannot be held that the said procedure adopted by the Commission suffers from the vice of arbitrariness. By giving equal weight to academic performance the Commission has rather reduced the possibility of arbitrariness."

30. Similarly, in the matter of Siya Ram v. Union of India and others 15,

selection for the post of Chief Personnel Inspector in Railways was

challenged on the ground that selection was permitted only through

oral test in the form of viva voce and no written examination was held

in which 50% marks were allotted for professional ability without

prescribing any norms. While rejecting the contention, the Supreme

Court held that for certain posts, only interview was considered to be

the best method of selection.

31. In Kiran Gupta (supra), the Supreme Court has considered the

decision of Shri Janki Prasad Parimoo (supra) and observed in

paragraph 22 as under: -

"22. It is difficult to accept the omnibus contention that selection on the basis of viva voce only is arbitrary and illegal and that since allocation of 15% marks for interview was held to be arbitrary by this Court, selections solely based on interview is a fortiori illegal. It will be useful to bear in mind that there is no rule of thumb with regard to allotment of percentage of marks for interview. It depends on several factors and the question of permissible percentage of marks for an interview-test has to be decided on the facts of each case. However, the decisions of this Court with regard to reasonableness of percentage of marks allotted for interview in cases of admission to educational institutions/schools will not afford a proper guidance in determining the permissible percentage of

15 (1998) 2 SCC 566 W.P.(S)Nos.1291/2021 & 5651/2021

marks for interview in cases of selection/appointment to the posts in various services. Even in this class, there may be two categories: (i) when the selection is by both a written test and viva voce; and (ii) by viva voce alone. The courts have frowned upon prescribing higher percentage of marks for interview when selection is on the basis of both oral interview and a written test. But, where oral interview alone has been the criteria for selection/appointment/promotion to any posts in senior positions the question of higher percentage of marks for interview does not arise. Therefore, we think it an exercise in futility to discuss these cases - Minor A. Peeriakaruppan v. State of Tamil Nadu 12 and Ajay Hasia v. Khalid Mujib Sehravardi 1 - relied upon by Mr Goswami, which deal with admission to educational institutions/schools and also cases where prescribed method of recruitment was written test followed by an interview - Ashok Kumar Yadav v. State of Haryana2; D.V. Bakshi v. Union of India8 and Krishan Yadav v. State of Haryana16.

32. In the matter of Ram Avtar Patwari and others v. State of Haryana and

others17, the Supreme Court has followed the decisions in Anzar

Ahmad (supra) and Kiran Gupta (supra).

33. Lastly, in the matter of Manish Kumar Shahi v. State of Bihar and

others18, their Lordships of the Supreme Court following their earlier

decision in Lila Dhar (supra) and other decisions on the point, held

that prescribing of higher percentage of marks for viva voce test /

interview for recruitment to judicial services, administrative services

and the like, suffers from no constitutional infirmity.

34. Coming to the facts of the case in the light of the principles of law laid

down by their Lordships of the Supreme Court in the above-noticed

judgments, it is quite vivid that the Supreme Court has clearly held

that interview alone is also a recognised mode of selection for public

services, particularly when it relates to higher posts and the criteria

16 (1994) 4 SCC 165 17 (2007) 10 SCC 94 18 (2010) 12 SCC 576 W.P.(S)Nos.1291/2021 & 5651/2021

applicable for admission in the educational institutions would not be

applicable for selection and appointment to public services. In the

instant case, different heads for awarding of marks in interview have

already been indicated by order dated 13-10-2021 in which 40%

marks have been provided for educational qualification, 15% for

knowledge of National Programmes, 15% for knowledge of Public

Health subjects, 25% for experience of working in government

institutions and 5% for personality have been prescribed. Paragraph 3

of order dated 13-10-2021 states as follows:-

3/ ससाकसात्कसार कक ननिररर्साररिर 100 अअंकको कसा ननवभसाजि ननि्िसािनससार ननककसा जसाककय-

              01      शशैकननणिक ककोग्क सा                    - 40 पनन श

              02      रसाषषषक कसाकर क्र कसा ञसाि             - 15 पनन श

              03      लकोक स्वसास्थ्क ननवषकयों कसा ञसाि      - 15 पनन श

              04      शसासककीक सअंस्थसाओअं ्रम कसाकर अिनभव   - 25 पततिशत

              05      वकननकत्व                               - 5 पनन श

35. Reverting finally to the facts of the case in the light of the principles of

law laid down by their Lordships of the Supreme Court, it is quite vivid

that in respect of selection for public employment different yardstick/

considerations would apply for determining the weightage to be given

to viva voce examination and the yardstick applicable for selection for

admission to educational institutions would not apply. In the instant

case, the State Government is recruiting Medical Officers, which have

to be selected from amongst the qualified doctors / matured persons

and the State Government in its wisdom has decided to select Medical

Officers only by way of interview, exclusively, for which 100% marks

have been divided in five different heads such as educational

qualification, knowledge of National Programmes, knowledge of Public W.P.(S)Nos.1291/2021 & 5651/2021

Health Subjects, experience of working in Government institutions and

also on personality of the candidates / doctors. This method of

recruitment is one of the permissible and recognised modes of

recruitment under Rule 6(1) of the Rules of 2013 and it cannot be

dubbed as arbitrary and illegal, as such, challenge in this behalf is

liable to be rejected.

36. Petitioner No.2 in W.P.(S)No.5651/2021 had already participated in

the recruitment process without demur / protest and has taken a

calculated chance by appearing in the examination and after

participating in the recruitment process, he has challenged the

recruitment notice by way of this writ petition. It is well settled that a

candidate who participates in selection without demur taking a

calculated chance to get selected cannot turn around and challenge

the criteria of selection and constitution of Selection Committee (see

Madan Lal and others v. State of J & K and others 19 followed by the

Supreme Court very recently in the matter of Ramjit Singh Kardam

and others v. Sanjeev Kumar and others20).

37. In view of the aforesaid legal discussion and legal analysis, this Court

is of the considered opinion that the challenge made to the recruitment

/ selection process for the post of Medical Officers being contrary to

Rule 6(1) of the Rules of 2013 and therefore recruitment to the post of

Medical Officers cannot be made on the basis of interview alone, is

liable to be rejected and is hereby rejected.

38. Consequently, as a fallout and consequence of the aforesaid

discussion, both the writ petitions deserve to be dismissed and are

hereby dismissed. The petitioners are saddled with cost of ₹ 25,000/- 19 (1995) 3 SCC 486 20 AIR 2020 SC 2060 W.P.(S)Nos.1291/2021 & 5651/2021

for unnecessarily delaying and protracting the recruitment process of

443 Medical Officers that too during the COVID-19 pandemic. Cost

shall be payable to the High Court Legal Services Committee.

Sd/-

(Sanjay K. Agrawal) Judge Soma W.P.(S)Nos.1291/2021 & 5651/2021

HIGH COURT OF CHHATTISGARH, BILASPUR

Writ Petition (S) No.1291 of 2021

Kamal Singh Rajput and others

Versus

State of Chhattisgarh and another

AND

Writ Petition (S) No.5651 of 2021

Dr. Kamal Singh Rajput and another

Versus

State of Chhattisgarh and another

Head Note

Recruitment on the post of Medical Officer (Class-II) can be done by the

State Government only through oral interview by virtue of Rule 6(1) of the

Chhattisgarh Medical Officers (Gazetted) Service Recruitment Rules, 2013.

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