Ashok Kumar Yadav & Ors Vs. State of Haryana & Ors [1985] INSC138 (10 May 1985)
1985 Latest Caselaw 138 SC

Ashok Kumar Yadav & Ors Vs. State of Haryana & Ors [1985] INSC 138 (10 May 1985)

BHAGWATI, P.N. BHAGWATI, P.N.

CHANDRACHUD, Y.V. ((CJ) SEN, AMARENDRA NATH (J) ERADI, V. BALAKRISHNA (J)

CITATION: 1987 AIR 454 1985 SCR Supl. (1) 657 1985 SCC (4) 417 1985 SCALE (1)1290

CITATOR INFO:

R 1987 SC2267 (14) R 1988 SC 162 (11,13) D 1988 SC1451 (8) R 1988 SC2073 (18) R 1991 SC 295 (14) F 1991 SC1011 (9,10) R 1992 SC 80 (2)

ACT:

Constitution of India, 1950, Article 316 and 226 Public Service Commission-Chairman and Members-Whether possess qualification and men of integrity and calibre-Whether High Court has power to inquire in such question-Condemnatory observations by High Court-No factual basis on pleadings or evidence-Propriety and validity of.

Administrative Law- Natural Justice-Condemnatory observations made by High Court against Chairman and Members of Public Service Commission without their being party respondents-Whether justified.

Recruitment to posts in Haryana Civil Service (Executive) & Allied Services-Selection by Public Service Commission-Some interviewed candidates closely related to Members-Selections-Whether vitiated.

Viva voce examination-20 candidates called for each post-Whether justified-Allocation of 33.3% marks in case of ex-service officers and 22.2% in case of other candidates- Whether the viva voce examination suffers from the vice of arbitrariness-Guidelines for fixing marks for viva voce examination-Indicated.

HEADNOTE:

Rule 9 clause (1) of the Punjab Civil Service (Executive Branch), Rules 1930 prescribes a competitive examination for recruitment to posts in Haryana Civil Service (Executive) and other allied services. Regulation (I) in Appendix (I) lays down that the competitive examination shall include compulsorily and optional subjects and that every candidate shall take the compulsory subjects and not more than three of the optional subjects, and that ex-servicemen shall not be required to appear in the optional subjects. As per Regulation 5, the compulsory subjects carry in the aggregate 400 marks and there is also viva-voce examination which is compulsory and which carries 200 marks and each optional subject carries 100 marks. Thus, the written examination carries an aggregate of 700 marks for candidates in general and for ex-servicemen it carries an aggregate of 400 marks while in case of both, the viva voce examination carries 200 marks. Regulation 3 provides that no candidate shall be eligible to appear in the viva voce test unless he obtains 45 per cent marks in the aggregate of all subjects.

In a written examination held by the Haryana Public Service Commission for recruitment to 61 posts in Haryana Civil Service (Executive) and other allied Services, over 1300 candidates obtained more than 45% marks and thus qualified 658 for being called for interview for the viva voce examination. The Haryana Public Service Commission invited all the candidates for the viva voce examination and the interviews lasted for almost half a year. The number of vacancies also rose during the time taken up in the written examination and the viva voce test and ultimately 119 posts became available for being filled and on the basis of total marks obtained in the written examination as well a viva- voce test, 119 candidates were selected and recommended by the Haryana Public Service Commission to the State Government.

The respondents-petitioners had obtained very high marks at the written examination but owing to rather poor marks obtained in the viva voce test, they could not come within the first 119 candidates and were consequently not selected. They filed several writ petitions in the High Court of Punjab and Haryana challenging the validity of the selection of the appellants and seeking a writ for quashing and setting aside the same. The State of Haryana, Haryana Public Service Commission, three members of the Haryana Public Service Commission and five selected candidates were respondents to the Writ Petitions. The respondents- petitioners contended before the High Court: (1) that the Chairman and members of the Haryana Public Service Commission were not men of high integrity, calibre and qualification and they were appointed solely as a matter of political patronage and hence the selections made by them were invalid; (2) that three of the selected candidates were related to two members of the Commission namely, Shri R.C. Marya and Shri Raghubar Dayal Gaur and though these two members did not participate in the interview of their respective relatives, they did participate in the interview of other candidates and the tactic adopted by the Chairman and the members of the Commission was to give high marks to the relatives and award low marks to the other candidates so as to ensure the selection of their relatives. This vitiated the entire selection process; (3) that the number of candidates called for interview were almost 20 times the number of vacancies and this not only imposed an intolerable burden on the Haryana Public Service Commission but also widened the scope for arbitrariness in selection by making it possible for the Haryana Public Service Commission to boost up or deflate the total marks which might be obtained by a candidate. This infirmity had the effect of invaliding the selection made by Haryana Public Service Commission; (4) that the allocation of 200 marks for the viva voce test out of a total of 900 marks for the generality of students and a total of 600 marks for ex servicemen was arbitrary and excessive and it had the effect of distorting the entire process of selection and it was accordingly unconstitutional as involving denial of equal opportunity in public employment; and (5) that the viva voce test was not conducted fairly and honestly and the selections made were vitiated on account of nepotism, favouritism and casteism and also political motivation. The appellants, however, submitted that the challenge to the validity of selections was unfounded on the grounds; (i) that not only was it not competent to the Court on the existing set of pleadings to examine whether the Chairman and members of the Haryana Public Service Commission were men of high integrity, calibre and qualification but also there was no material at all on the basis of which the Court could possibly come to the conclusion that they were men lacking integrity, calibre or qualification; (ii) that the Haryana public Service Commission being a constitutional authority it was not necessary for Sh. R.C.M Arya and Sh. Raghubar Dayal Gaur to withdraw altogether from 659 the interviews and they acted correctly in abstaining from participation when their relatives came to be interviewed.

This was in conformity with the principles of fair play and did not affect the validity of the selections; (iii) that under Regulation 3 in Appendix I, the Haryana Public Service Commission was justified in calling for interview all the 1300 and odd candidates who qualified by getting more than 45% marks; (iv) that the allocation of 200 marks for the viva voce test was made under the Punjab Civil Service (Executive Branch) Rules, 1930 and it had stood the test of time and could not possibly be regarded as arbitrary or excessive; and (v) that the selections were made fairly and honestly and they were not tainted by nepotism, favouritism, casteism or political patronage, besides there was nothing to show that any extraneous considerations had influenced the selection process. The High Court set aside the selections made by the Haryana Public Service Commission and directed the Haryana Public Service Commission and the State of Haryana to forthwith declare the result of candidates of all categories on the basis of written examination alone, scrupulously excluding all considerations of the viva voce test. Hence these appeals by the appellants, selected candidates, State of Haryana and three members of the Haryana Public Service Commission.

Allowing the appeals, the Court, ^

HELD : 1. (i) The Division Bench of the High Court was not justified in making condemnatory observations against the Chairman and all the members of the Haryana Public Service Commission. Three members namely S/Sh. D.R. Chaudhary, Raghubar Dayal Gaur and R.C. Marya were joined as respondent Nos. 3, 4 and 5 but the Chairman Shri B.S. Lather and another member Shri Gurmesh Prakash Bishnoi were not impleaded in the writ petitions and yet the most damaging observations were made against them This was clearly in violation of the principles of natural justice. Moreover, these observations against the Chairman and members of the Haryana Public Service Commission were made without any factual basis on the pleadings or the evidence.

[672 H; 673 A-B] (ii) It is difficult to see how on the basis of a mere averment in paragraph 9 of one of the writ petitions, which averment was disputed on behalf of the respondents, the Division Bench of the High Court could possibly come to the conclusion that politics had played a major role in appointment of the Chairman and members of the Haryana Public Service Commission and that they were men lacking in integrity, calibre and qualification, particularly when no such allegation was made by the petitioners in any of the other writ petitions. Therefore, the Division Bench of the High Court was not at all justified in drawing from the facts set out in paragraph 9 of Civil writ Petition No. 3344 of 1983 any inference that the Chairman and members were totally unfit to be appointed on the Haryana Public Service Commission or that they were not men of integrity, calibre and qualification. However, it may be pointed out that even if the Chairman and members of the Haryana Public Service Commission were appointed on account of political and caste considerations, they could still be men of character, integrity and competence and the extraneous considerations which might have weighed with the appointing authority need not necessarily reflect upon their competence, character or fitness. [674 A-C; 675 A-B] 660 (iii) The High Court was not justified in undertaking an inquiry into the question whether the Chairman and members of the Haryana Public Service Commission were men of integrity, calibre and qualification or not. It was a totally irrelevant inquiry because even if they were men lacking in integrity, calibre and qualification, it would not make their appointments invalid, so long as the constitutional and legal requirements in regard to appointment were fulfilled. The High Court was also wrong in going into the question whether the Chairman and members of the Haryana Public Service Commission were appointed on account of caste considerations and political patronage or were lacking in integrity, calibre or qualification, when the validity of their appointments was not challenged in the writ petitions nor was any relief claimed for setting aside their appointments. The validity of their appointments could not be questioned collaterally while considering the challenge to the selections made by them.

In the instant case, no constitutional provision was violated in making appointments of the Chairman and members of the Haryana Public Service Commission nor was any legal provision breached and the appointments of the Chairman and members of the Haryana Public Service Commission were made in conformity with the constitutional and legal requirements. If that be so, it is difficult to see as to how the appointments of the Chairman and members of the Haryana Public Service Commission could be regarded as suffering from any infirmity or any selections made by them could be said to be vitiated, merely on the ground that they were not, in the opinion of the Division Bench of the High Court, possessed of integrity, calibre or qualifications.

[675 C-D; 676 G-H; 675 H; 676 A-C] C. Ranga Raju v. State of Andhra Pradesh [1981] 3 S.C.R. 474 relied upon.

2. (i) There was no material whatsoever on record to justify the observations made by the Division Bench that high marks were undeservedly given to the three candidates related to Shri R.C. Marya and Shri Raghubar Dayal Gaur and low marks were deliberately given to the other meritorious candidates with a view to manipulating the selection of the former at the cost of the latter. In fact, far from there being any material supportive of such observation, there is one circumstance, which, completely militates against the view taken by the Division Bench and that circumstance is that the marks obtained by the candidates at the written examination were not disclosed to the members of the Haryana Public Service Commission who held the viva voce examination. If the members, who interviewed the candidates, did not know what were the marks obtained by the candidates at the written examination, it is difficult to see how they could have manipulated the marks at the viva voce examination with a view to pushing up the three candidates related to Shri R.C. Marya and Shri Raghubar Dayal Gaur or any other candidates of their choice so as to bring them within the range of selection. [682 C-E]

2. (ii) It is one of the fundamental principles of jurisprudence that no man can be a judge in his own cause and that if there is a reasonable likelihood of bias it is 'in accordance with natural justice and common sense that the justice likely to be so biased should be incapacitated from sitting". The question is not whether the judge is actually biased or in fact decides partially, but 661 whether there is a real likelihood of bias. What is objectionable in such a case is not that the decision is actually tainted with bias but that the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. The basic principle underlying this rule is that justice must not only be done but must also appear to be done and this rule has received wide recognition in several decisions of the Supreme Court. It is also important to note that this rule is not confined to cases where judicial power stric to sensu is exercised. It is appropriately extended to all cases where an independent mind has to be applied to arrive at a fair and just decision between the rival claims of parties. Justice is not the function of the courts alone;

it is also the duty of all those who are expected to decide fairly between contending parties. The strict standards applied to authorities exercising judicial power are being increasingly applied to administrative bodies, for it is vital to the maintenance of the rule of law in a welfare state where the jurisdiction of administrative bodies is increasing at a rapid pace that the instrumentalities of the State should discharge their functions in a fair and just manner. Where reasonable likelihood of bias is alleged on the ground of relationship, the question would always be as to how close is the degree of relationship or in other words, is the nearness of relationship so great as to give rise to reasonable apprehension of bias on the part of the authority making the selection. [683 E-H; 634 A-B; 685 C-D] A.K. Kraipak v. Union of India A.I.R. 1970 S.C. 150 relied upon.

D.K. Khanna v. Union of India & Ors. [1973] 1 S.L.R.

80: Surinder Nath Goel v. State of Punjab [1973] 1 Ser. L.R.

690 and M. Ariffudin v. D.D. Chitaley & Ors. [1973] 2 Ser.

L.R. 119 referred to.

2.(iii) The principle which requires that a member of a selection Committee whose close relative is appearing for selection should decline to become a member of the selection committee or withdraw from it leaving it to the appointing authority to nominate another person in his place, need not be applied in case of a constitutional Authority like the Public Service Commission, whether Central or State. If a member of a Public Service Commission was to withdraw altogether from the selection process on the ground that a close relative of his is appearing for selection, no other person save a member can be substituted in his place. And it may sometimes happen that no other member is available to take the place of such member and the functioning of the Public Service Commission may be affected. When two more members of a Public Service Commission are holding a viva voce examination, they are functioning not as individuals but as the Public Service Commission. Of course, it must be made clear that when a close relative of a member of a Public Service Commission is appearing for interview, such member must withdraw from participation in the interview of that candidate and must not take part in any discussion in regard to the merits of that candidate and even the marks or credits given to that candidate should not be disclosed to him.

[686 G-H;687 A-B] Javid Rasool Bhat v. State of J.& K. [1984] 2 S.C.C.

632 relied upon.

In the instant case, both the members of the Haryana Public Service Commission retired from the room when the inter views of their respective 662 relatives were held. Moreover, neither of them took any part in any discussion in regard to the merits of his relatives nor is there anything to show that the marks or credits obtained by their respective relatives at the interviews were disclosed to them. There was no infirmity attaching to the selections made by the Haryana Public Service Commission on the ground that, though their close relative were appearing for the interview, Shri Raghubar Dayal Gaur and Shri R.C. Marya did not withdraw completely from the entire selection process. [688 C-D;] 4.(i) The Haryana Public Service Commission was not right in calling for interview all the 1300 and odd candidates who secured 45 per cent or more marks in the written examination. It is clear on a plain natural construction of Regulation 3 that what it prescribes is merely a minimum qualification for eligibility to appear at the viva voce test. Every candidate to be eligible for appearing at the viva voce test must obtain at least 45 per cent marks in the aggregate in the written examination. But obtaining of minimum, 45 per cent marks does not by itself entitle a candidate to insist that he should be called for the viva voce test. There is no obligation on the Haryana public Service Commission to call for the viva voce test all candidates who satisfy the minimum eligibility requirement.

Where there is a composite test consisting of a written examination followed by a viva voce test, the number of candidates to be called for interview in order of the marks obtained in the written examination, should not exceed twice or at the highest, thrice the number of vacancies to be filled.

In the instant case, the Haryana Public Service Commission could not be said to be actuated by any malafide or oblique motive in calling for interview all the 1300 candidates because it was common ground between the parties that this was the practice which was being consistently followed by the Haryana Public Service Commission over the years and what was done in this case was nothing exceptional. Therefore the selections made by the Haryana Public Service Commission could not be said to be vitiated merely on the ground that as many as 1300 and more candidates representing more than 20 times the number of available vacancies were called for interview, though it is not right course to follow and not more than twice or at the highest thrice, the number of candidates should have been called for interview. [690 B; E-F, 691 G-H; 629 A-D] "Theory & Practice of Modern Government" by Harman Finer and Kothari Committee's Report on the Recruitment Policy & Selection Methods for Civil Services Examination referred to 4.(ii) It is true that some of the petitioners did quite well in the written examination but faired badly in the viva voce test and in fact their performance at the viva voce test appeared to have deteriorated in comparison to their performance in the year 1977-78. But, the Court cannot sit in judgment over the marks awarded by interviewing bodies unless it is proved or obvious that the marking is plainly and indubitably arbitrary or affected by oblique motives. It is only if the assessment is patently arbitrary or the risk of arbitrariness is so high that a reasonable person would regard arbitrariness as inevitable, that the assessment of marks at the viva voce test may be regarded as suffering from the vice of arbitrariness. [692 F-G; 693 B- C;] 663 In the instant case, apart from only three candidates, namely, Trilok Nath Sharma, Shakuntala Rani and Balbir Singh one of whom belonged to the general category and was related to Shri Raghubar Dayal Gaur and the other two were candidates for the seats reserved for scheduled Castes and were related to Shri R.C. Marya, there was no other candidate in whom the Chair man or any member of the Haryana Public Service Commission was interested, so that there could be any motive for manipulation of the marks at the viva voce examination. There were of course general allegations of casteism made against the Chairman and the members of the Haryana Public Service Commission but these allegations were not substantiated by producing any reliable material before the Court. The Chairman and members of the Haryana Public Service Commission in fact belonged to different castes and it was not as if any particular caste was predominant amongst the Chairman and members of the Haryana Public Service Commission so as even to remotely justify an inference that the marks might have been manipulated to favour the candidates of that caste.

Therefore, the Division Bench was not right in striking down the selections made by the Haryana Public Service Commission on the ground that they were vitiated by arbitrariness or by reasonable likelihood of bias. [693 D-G] 5.(i) While a written examination assesses the candidate's knowledge and intellectual ability, a viva voce test 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, 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 can be evaluated, perhaps with some degree of error, by a viva voce test, much depending on the constitution of the interview Board. There can therefore be no doubt that the viva voce test performs a very useful function in assessing personnel characteristics and traits and in fact, tests the man himself and is therefore regarded as an important tool along with the written examination. [695 F-G; 696 C-D] 5.(ii) There cannot be any hard and fast rule regarding the precise weight to be given to the viva voce test as against the written examination. It must very from service to service according to the requirement of the service, the minimum qualification prescribed, the age group from which the selection is to be made, the body to which the task of holding the viva voce test is proposed to be entrusted and a host of other factors. It is essentially a matter for determination by experts. The Court does not possess the necessary equipment and it would not be right for the Court to pronounce upon it, unless to use the words of Chinnappa Reddy, J. in Liladhar's case "exaggerated weight has been given with proven or obvious oblique motives." [696 H; 697 A-B]

5. (iii) The allocation of as high a percentage of marks as 33.3% in case of ex-service officers and 22-2% test in case of other candidates for the viva voce renders the selection process arbitrary and it does suffer from the vice of arbitrariness.[697 C-D] Kothari Committee's Report on the Recruitment Policy & Selection Methods for the Civil Services Examination relied upon 664 In the instant case, the candidates selected by the Haryana Public Service Commission have already been appointed to various posts and have been working on these posts since the last about two years. Moreover the Punjab Civil Service (Executive Branch) Rules 1930 under which 33.3% marks in case of ex-service officers and 22.2% marks in case of other candidates, have been allocated for the viva voce test have been in force for almost 50 years and everyone has acted on the basis of these rules. If selections made in accordance with the prescription contained in these rules are now to be set aside, it will upset a large number of appointments already made on the basis of such selections and the integrity and efficiency of the entire administrative machinery would be seriously jeopardised. Therefore this Court does not propose to set aside the selections made by the Haryana Public Service Commission though they have been made on the basis of an unduly high percentage of marks allocated for the viva voce test. [700 B-D]

6. So far as candidates in general category are concerned, it would be prudent and safe to follow the percentage adopted by the Union Public Service Commission in case of selections to the Indian Administrative Service and other allied services. The percentage of marks allocated for the viva voce test by the Union Public Service Commission in case of selections 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. This Court 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% of the total marks taken into account for the purpose of selection. The Court would suggest that this percentage should also be adopted by the Public Service Commissions in other States, because it is desirable that there should be uniformity in the selection process through out the country and the practice followed by the Union Public Service Commission should be taken as a guide for the State Public Service Commissions to adopt and follow. In case of ex-service officers, having regard to the fact that they would ordinarily be middle aged persons with personalities fully developed, the percentage of marks allocated for the viva voce test may be 25. Whatever selections are made by the Haryana Public Service Commission in the future shall be on the basis that the marks allocated for the viva voce test shall not exceed 12.2% in case of candidates belonging to the general category and 25% in case of ex-service officers. [700 F-H; 701 A-D]

7. The Court directed that when selections to the Judicial Service are being made in a State, a sitting Judge of the High Court to be nominated by the Chief Justice of the State should be invited to participate in the interview as an expert who, by reason of the fact that he is a sitting High Court Judge, knows the quality and character of the candidates appearing for the interview and the advice given by him should ordinarily be accepted, unless there are strong and cogent reasons for not accepting such advice and such strong and cogent reasons must be recorded in writing by the Chairman and members of the Public Service Commission. [702 E-G] 665

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 10160- 10162 of 1983.

From the Judgment and Order dated 20.10.1983 of the Punjab and Haryana High Court in Writ Petition No. 2495 of 1983.

P.P. Rao, A. Mariarputham, K.S. Kendriya and R. Venkatarumani for the Appellants in C.A. No. 10160 of 1983. G.L. Sanghi, S.K. Mehta, P.N. Puri, M.K. Dua and A.K. Vachar for the Appellants in C.A. No. 10161 of 1983. A.K. Ganguli for the Appellants in C.A. No. 10162 of 1983. M.K. Ramamurthi, Mahabir Singh, S. Srinivasan and Vijay Hansaria for the Respondents Nos. 6 & 7 in C.A. No. 10160 of 1983. R.K. Garg, Mahabir Singh, S. Srinivasan and Vijay Hansaria for the Respondents Nos. 1, 2 and 16 in C.A. No. 10161 and Respondents Nos. 8 & 9 in C.A. No. 10162 of 1983.

The Judgment of the Court was delivered by BHAGWATI, J. These appeals by special leave are directed against a judgment of the Division Bench of the Punjab & Haryana High Court quashing and setting aside certain selections made by the Haryana Public Service Commission to the Haryana Civil Service (Executive) and other allied services. The judgment in part proceeds on surmises and conjectures and has made certain uncharitable observations against the Chairman and Members of the Haryana Public Service Commission without any warrant and hence it is necessary to set out the facts giving rise to the appeals in some detail.

Sometime in October 1980 the Haryana Public Service Commission invited applications for recruitment to 61 posts in Haryana Civil Service (Executive) and other allied Services. The procedure for recruitment was governed by the Punjab Civil Service (Executive Branch) Rules, 1930 as applicable in the State of Haryana. Rule 9 clause (1) of these Rules provided that a competitive examination shall be held at any place in Haryana in each year in or about the month of January for the purpose of selection by competition of as many candidates for the Haryana Civil Service (Executive), and others allied services as the Governor of Haryana may determine and 666 such competitive examination shall be held in accordance with the Regulations contained in Appendix I to the Rules.

Rule 10 laid down the conditions for eligibility to appear at the competitive examination but we are not concerned with these conditions of eligibility in the present appeals.

Regulation I in Appendix I provided that the competitive examination shall include compulsory and optional subjects and every candidate shall take all the compulsory subjects and not more than three of the optional subjects, provided that ex-serviceman shall not be required to appear in the optional subjects. The compulsory subjects included English Essay, Hindi Essay and General knowledge carrying in the aggregate 400 marks and there was also viva-voce examination which was compulsory and which carried 200 marks and each optional subject carried 100 marks. Vide Regulation 5. The result was that the written examination carried an aggregate of 700 marks for candidates in general and for ex- servicemen, it carried an aggregate of 400 marks while in case of both, the viva voce examination carried 200 marks.

Some argument has turned on the true interpretation of Regulation 3 and hence it would be desirable to set it out in extenso. It read as follows:

"3. No candidate shall be eligible to appear in the viva voce test unless he obtains 45 per cent marks in the aggregate of all subjects including at least 33 per cent marks in each of the language papers in Hindi (in Devnagri Script) and Hindi Essay provided that if at any examination a sufficient number of candidates do not obtain 45 per cent marks in the aggregate the Commission may at their discretion lower this percentage to not below 40 per cent for the language papers remaining unchanged." It appears that in response to the advertisement issued by the Haryana Public Service Commission, about 6000 candidates applied for recruitment and appeared at the written examination held by the Haryana Public Service Commission.

Out of about 6000 candidates who appeared for the written examination, over 1300 obtained more than 45 per cent marks and thus qualified for being called for interview for the viva voce examination. The Haryana Public Service Commission invited all the 1300 and more candidates who qualified for the viva voce test, for interview and the interviews lasted for almost half a year. It seems that though originally applications were invited for recruitment to 61 posts, the number of vacancies rose 667 during the time taken up in the written examination and the viva voce test and test and ultimately 119 posts became available for being filled and on the basis of total marks obtained in the written examination as well as viva-voce test, 119 candidates were selected and recommended by the Haryana Public Service Commission to the State Government.

It seems that there were some candidates who had obtained very high marks at the written examination but owing to rather poor marks obtained by them in the viva voce test, they could not come within the first 119 candidates and they were consequently not selected. They were aggrieved by the selections made by the Haryana Public Service Commission and three out of them accordingly filed Civil writ No. 2495 of 1983 in the High Court of Punjab and Haryana challenging the validity of the selections and seeking writ for quashing and setting aside the same. They also claimed that the marks given in the viva voce test should be ignored and selections should be made only on the basis of the marks obtained by the candidates at the written examination and they contended that if that was done, they would be within first 119 to be selected by the Haryana Public Service Commission. Some other candidates who did not figure in the list of 119 selected candidates also filed Civil Writ Petition Nos.

2317, 3344, 3345, 3434, 3457, 3435 and 3719 of 1983 in the High Court of Punjab and Haryana challenging the validity of the selections on substantially the same grounds and claiming substantially the same reliefs as the petitioners in Civil Writ Petition 2495 of 1983. The State of Haryana was joined as 1st respondent, the Haryana Public Service Commission as 2nd respondent and three out of the five members of the Haryana Public Service Commission, as respondents Nos. 3 to 5 in these writ petitions. The Chairman and one other member of Haryana Public Service Commission, namely, Shri B.S. Lather and Shri Gurmesh Prakash Bishnoi were however not impleaded as respondents in the writ petitions. None of the 119 selected candidates were also joined as respondents in the writ petitions. Five our of the 119 selected candidates thereupon applied for being joined as respondents to these writ petitions and on their application, they were added as respondent Nos. 6 to 10 in the writ petitions. This was broadly the array of parties in the writ petitions.

Since all the writ petitions raised substantially the same issues and the pleadings in the writ petitions also followed substantially the same pattern, one writ petition, namely, Civil Writ Petition 2495 of 1983 was treated as the main writ petition and the principal arguments were advanced in that writ petition, It would therefore be 668 convenient to refer only to Civil Writ Petition 2495 of 1983 and trace the course followed by it in the High Court because whatever we say in regard to this writ petition would apply equally to the other writ petitions. So far as Civil Writ Petition No. 2495 of 1983 is concerned, the State of Haryana filed its counter affidavit in reply to the writ petition and so also did the Haryana Public Service Commission. The five selected candidates who were impleaded as respondents Nos. 6 to 10 also filed their counter affidavit joining issue with the petitioners. We do not propose to set out here at this stage the averments made in the writ petition or the answer to those averments made on behalf of the respondents, because we shall have to refer to them in some detail when we deal with the arguments advanced on behalf of the parties. Suffice it to state that the avernments made in the writ petition and the answer sought to be given on behalf of the respondents raised issues of considerable importance affecting not only the Haryana Public Service Commission but also all other State Public Service Commissions and calling for formulation of principle and norms which should guide all State Public Service Commissions in the discharge of their functions. We may briefly set out the grounds on which the petitioners challenged the validity of the selections made by the Haryana Public Service Commission.

There were several grounds on which the validity of the selections made by the Haryana Public Service Commission was assailed on behalf of the petitioners and a declaration was sought that they were entitled to be selected as falling within the first 119 candidates. The first ground was that the Chairman and members of the Haryana Public Service Commission were not men of high integrity, calibre and qualification and they were appointed solely as a matter of political patronage and hence the selections made by them were invalid. Secondly, it was urged on behalf of the petitioners that two of the selected candidates, namely, Mrs. Shakuntala Rani and Balbir Singh were related to one of the members of the Haryana Public Service Commission namely, Sh. R.C. Marya, while the third selected candidate namely Trilok Nath Sharma was related to another member namely, Sh.

Raghubar Dayal Gaur and though these two members did not participate in the interview of their respective relatives they did participate in the interview of other candidates and the tactics adopted by the Chairman and the members of the Commission was to give high marks to the relatives and award low marks to the other candidates so as to ensure the selection of their relatives. This, according to 669 petitioners, vitiated the entire selection process. Thirdly, contended the petitioners, it was contrary to the well settled practice followed by the Union Public Service Commission and other selecting authorities to call for interview as many as 1300 candidates even though the number of vacancies required to be filled in was only 119. The number of candidates called for interview was almost 20 times the number of vacancies and this not only imposed an intolerable burden on the Haryana Public Service Commission but also widened the scope for arbitrariness in selection by making it possible for the Haryana Public Service Commission to boost up or deflate the total marks which might be obtained by a candidate. The argument of the petitioners was that the number of candidates to be called for interview should not exceed twice or at the highest, thrice the number of vacancies because otherwise the objective test of written examination would be considerably diluted by the subjective assessment made in the vive voce test and there would be considerable scope for arbitrariness in the process of selection. This infirmity, submitted the petitioners, had the effect of invaliding the selections made by the Haryana Public Service Commission. The fourth contention urged on behalf of the petitioners was that the allocation of 200 marks for the viva voce test out of a total of 900 marks for the generality of students and a total of 600 marks for ex- servicemen, was arbitrary and excessive and it had the effect of distorting the entire process of selection by introducting in a preponderant measure subjective element which could facilitate arbitrariness and manipulation and it was accordingly unconstitutional as involving denial of equal opportunity in public employment. Lastly, it was contended on behalf of the petitioners that the viva voce test was not conducted fairly and honestly and the selections made were vitiated on account of nepotism, favouritism and casteism and also political motivation.

These were broadly the grounds of attack levelled against the validity of the selections made by the Haryana Public Service Commission.

These ground of challenge were sought to be repelled on behalf of the respondents and it was contended that not only was it not competent to the court on the existing set of pleadings to examine whether the Chairman and members of the Haryana Public Service Commission were men of high integrity, calibre and qualification but also there was no material at all on the basis of which the Court could possibly come to the conclusion that they were men lacking in integrity, calibre or qualification. It was also urged on behalf of the respondents that the Haryana Public Service Commission being 670 a constitutional authority it was not necessary for Sh. R.C.

Marya and Sh. Raghubar Dayal Gaur to withdraw altogether from the interviews and they acted correctly in abstaining from participation when their relatives came to be interviewed. This was according to the respondents, in conformity with the principles of fair play and did not affect the validity of the selections. The respondents also contended that under Regulation 3 in Appendix I every candidate who obtained 45 per cent and more marks in the written examination was eligible to be called for interview and the Haryana Public Service Commission was therefore justified in calling for interview all the 1300 and odd candidates, who qualified by getting more than 45 per cent marks and in fact it would have been a denial of equal opportunity in public employment if some of them had not been called despited having qualified for the viva voce test. So far as the allocation of 200 marks for the viva voce test is concerned, it was contended that this allocation of 200 marks for the viva voce test was made under the Punjab Civil Service (Executive Branch) Rules 1930 which had been in force since over 50 years and no one had raised any objection to it during this long period of half a century and it had stood the test of time and could not possibly be regarded as arbitrary or excessive. The allegation that the selections were not made fairly and honestly and they were tainted by nepotism, favouritism casteism or political patronage was vehemently denied on behalf of the respondents and it was contended that there was nothing to show that any extraneous considerations had influenced the selection process. The respondents accordingly submitted that the challenge to the validity of the selections was unfounded and the writ petitions were liable to be dismissed.

The writ petitions came to be heard by a Division Bench of the High Court of Punjab and Haryana. The Division Bench after hearing the parties at great length delivered a judgment on 20th October 1983 allowing the writ petitions.

The Division Bench held that the Chairman and members of the Haryana Public Service Commission had been appointed purely on the basis of political partisanship and caste considerations and that they did not satisfy the stringent test of being men of high integrity, calibre and qualification. The Division Bench actually went to the length of alleging corruption against the Chairman and members of the Haryana Public Service Commission and observed that they were not competent "to validly wield the golden scale of viva voce test for entrants into the prestigious public service." This ground alone, accordingly to the Division Bench, was sufficient to invalidate the selections made by 671 the Haryana Public Service Commission. The Division Bench then proceeded to hold that it was not enough for Sh. R.C.

Marya and Sh. Raghubar Dayal Gaur to abstain from participating in the interview when their relatives came up for the viva voce test and their presence and participation at the time of interview of the other candidates was sufficient to taint the selection process with a serious infirmity. The Division Bench almost seemed to suggest, without there being the slightest warrant for it, that "it was a familiar and deliberate tactic adopted by the members of the Commission to abstain from participating in the interview of their close relatives which in effect made patent to the remaining members about their deep interest in them and further that each member of the Commission adjusted the relatives" of the other and awarded low marks in interview to other candidates who had secured high marks in the written examination in order to oust the latter and bolster up the former in the merit list. The Division Bench also condemned out of hand the practice adopted by the Haryana Public Service Commission of calling for interview all the candidates who obtained more than 45% marks in the written examination and who thus proved themselves eligible for the viva voce test. The view taken by the Division Bench was that the number of candidates to be called for interview should not exceed twice or at the highest, thrice the number of vacancies required to be filled up. The Division Bench also observed that the allocation of 200 marks for the viva voce test was arbitrary and excessive, as it introduced a large amount of subjective discretion in the process of selection which subordinated the objective test of written examination and this, according to the Division Bench, constituted denial of equal opportunity in public employment. The Division Bench also came to the conclusion that candidates who had obtained high marks in the written examination had been depressed by award of low marks in the viva voce test and candidates who had obtained low marks were pulled up by award of high marks in the viva voce test and the entire selection process was vitiated by an "obvious oblique motive" and tainted by nepotism, favouritism, caste considerations and political pressures. The Division Bench on this view set aside the selections made by the Haryana Public Service Commission and directed the Haryana Public Service Commission and the State of Haryana" to forthwith declare the result of candidates of all categories on the basis of written examination alone, scrupulously excluding all considerations of the viva voce test. Respondents No. 6 to 10 thereupon preferred Civil Appeal No. 10160 of 1983 with special leave obtained from this Court and similarly with special leave, Civil Appeal No. 10161 of 1983 was preferred by 672 the State of Haryana and the Haryana Public Service Commission against the judgment of the Division Bench. Since disparaging observations were made against the Chairman and members of the Haryana Public Service Commission by the Division Bench in its judgment, three members of the Haryana Public Service Commission who were impleaded as respondents No. 3, 4 and 5 in the writ petitions also applied for special leave to appeal and on such leave being obtained, preferred Civil Appeal No. 10161 of 1983. All these three appeals were heard together since they were directed against the same judgment of the Division Bench and we proceed to dispose them of by this common judgment.

The first question that arises for consideration in these appeals is whether the Division Bench of the High Court was right in condemning the Chairman and members of the Haryana Public Service Commission as men lacking in integrity, calibre and qualification and alleging corrupt motives against them. The answer must plainly be in the negative and for more than one reason. In the first place, it is common ground that the Haryana Public Service Commission consisted of 5 members including the Chairman and all of them participated in the interviews save and except Shri. R.C. Marya, who did not participate in the interview of his daughter-in-law Shakuntala Rani and the brother of his son-in-law, Balbir Singh and Shri Raghubar Dayal Gaur who did not participate in the interview of the son-in-law of his sister, Trilok Nath Sharma. The Division Bench of the High Court cast serious aspersions on all the members of the Haryana Public Service Commission including the Chairman and observed that "in the matter of appointments to the Haryana Public Service Commission, the actualities of work-a-day politics have wholly whittled away the ideal and the purpose" in which the constitutional institution of Public Service Commission was conceived. The Division Bench of the High Court went to the length of holding that the appointments of the Chairman and the member of the Haryana Public Service Commission were made "wholly caste considerations and political affiliations" and all of them including the Chairman did not satisfy the stringent test of "men of high integrity, calibre and qualification". These were highly disparaging observations made against the Chairman and member of the Haryana Public Service Commission and cast serious refection on their character and integrity.

Surprisingly, these condemnatory observations were made against the Chairman and all the members of the Haryana public Service Commission without their being party respondents to the writ petitions. Three members namely S/Sh.

673 D. R. Chaudhary, Raghubar Dayal Gaur and R. C. Marya were joined as respondent Nos. 3, 4 and 5 but the Chairman Shri B. S. Lather and another member Shri Gurmesh Parkash Bishnoi were not impleaded in the writ petitions and yet the most damaging observations were made against them. This was clearly in violation of the principles of natural justice.

The observations made against Shri B. S. Lather and Shri Gurmesh Prakash Bishnoi cannot therefore be allowed to stand and if these observations are obliterated from the judgment, the entire super-structure of the argument assailing the constitution of the Haryana Public Service Commission as a whole must collapse.

Secondly, these observations against the Chairman and members of the Haryana Public Service Commission were made without any factual basis in the pleadings or the evidence.

There were no averments made in any of the writ petitions, save and except Civil Writ petition No. 3344 of 1983, regarding the Chairman or any of the members of the Haryana Public Service Commission. It was nowhere alleged in any of these writ petitions that the Chairman and members of the Haryana public Service Commission were lacking in integrity, calibre and qualification or that they were appointed on the Haryana Public Service Commission purely on account of caste considerations or political affiliations without any merit or competence. The only averments in regard to the appointments of the Chairman and members of the Haryana Public Service Commission were to be found in paragraph 9 of Civil Writ petition No. 3344 of 1983 where a direct allegation was made that all the members of the Haryana Public Service Commission including the Chairman had political links and backing and their appointments were "only due to political and caste considerations". The petitioners in this writ petition proceeded to point out the relationship of the Chairman and members of the Haryana Public Service Commission to one or the other member of the political party ruling the State at the date of the respective appointments and sought to draw an inference from such relationship that their appointments were on account of caste considerations and political linkages and merit, competence and integrity were sacrificed. The relationship alleged in paragraph 9 was not disputed on behalf of the respondents but the inference sought to be drawn there from was stoutly resisted and it was contended that there was no material at all on the basis of which it could be said that the Chairman and members of the Haryana Public Service Commission were appointed solely "due to political and caste considerations" without taking into account calibre, competence or 674 integrity. In fact the State of Haryana in its counter affidavit seriously disputed that the Chairman and members of the Haryana Public Service Commission had any political affiliations. Now it is difficult to see how on the basis of a mere averment in paragraph 9 of one of the writ petitions, which averment was disputed on behalf of the respondents, the Division Bench of the High Court could possibly come to the conclusion that politics had played a major role in appointment of the Chairman and members of the Haryana Public Service Commission and that they were men lacking in integrity, calibre and qualification, particularly when no such allegation was made by the petitioners in any of the other writ petitions. We do not think that the Division Bench of the High Court was at all justified in drawing from the facts set out in paragraph 9 of Civil Writ petition No.

3344 of 1983 any inference that the Chairman and members were totally unfit to be appointed on the Haryana Public Service Commission or that they were not men of integrity calibre and qualification. Merely because Shri B. S. Lather was the brother of Shri Mahinder Singh Lather who was allegedly influential with the Government of Haryana when the Janta Party was in power or Shri R. C. Marya was close to Shri Chand Ram who was a Union Minister for State during the Janta regime or Shri D. R. Chaudhary was close to Ch.

Devi Lal former Chief Minister of Haryana and belonged to his caste as well as to his village or Shri Raghubar Dayal Gaur was close to and belonged to the caste of Shri Chiranji Lal Sharma who was a Congress Member of Parliament or Shri Gurmesh Prasad Bishnoi was close to and belonged the caste of Shri Bhajan Lal, present Chief Minister of Haryana, it does not necessarily follow that they were not fit to be appointed but were appointed solely on account of personal relationship and caste considerations. The Division Bench of the High Court proceeded solely on surmises and conjectures and committed a grievous error in jumping to the conclusion that the Chairman and members of the Public Service Commission were lacking in integrity, calibre and qualification and were appointed solely on account of extraneous considerations. It is a very serious matter to cast aspersions on the character, integrity and competence of men occupying the high office of Chairman and members of a Public Service Commission and we wish the Division Bench of the High Court had acted with care and circumspection in making such imputation against the Chairman and members of the Haryana Public Service Commission, when it was not even specifically alleged in paragraph 9 of Civil Writ Petition 3344 of 1983 that the Chairman and members of the Haryana Public Service Commission were unfit to hold the office to which they were appointed or 675 were lacking in integrity, character and qualification. We may point out that even if the Chairman and members of the Haryana Public Service Commission were appointed on account of political and caste considerations, they could still be men of character, integrity and competence and the extraneous considerations which might have weighed with the appointing authority need not necessarily reflect upon their competence, character or fitness. The condemnatory observations made against the Chairman and members of the Haryana Public Service Commission thus not only went beyond the averments made in the writ petitions but were also totally unjustified and unwarranted.

Thirdly, it is difficult to see how the Division Bench of the High Court could possibly undertake an inquiry into the question whether the Chairman and members of the Haryana Public Service Commission were men of integrity, calibre and qualification or not. It was totally irrelevant inquiry, because even if they were men lacking in integrity, calibre and qualification, it would not make their appointments invalid, so long as the constitutional and legal requirements in regard to appointment were fulfilled.

Article 316 of the Constitution makes provision for appointment and term of office of members of a State Public Service Commission. Clause (1) of this Article provides that the Chairman and members of a State Public Service Commission shall be appointed by the Governor of the State and the proviso to that clause enacts that "as nearly as may be one half of the members of every Public Service Commission shall be persons who at the dates of their respective appointments have held office for at least ten years" under the Government of a State. Clause(2) of Article 316 declares that a member of a State Public Service Commission shall hold office for a term of six years from the date on which he enters upon his office or until he attains the age of sixty two years, which ever is earlier.

Article 319 lays down inter alia that on ceasing to hold office, the Chairman of State Public Service Commission shall not be eligible for any employment under the Government of India or the Government of a State, save and except that of Chairman or any other member of the Union Public Service Commission and similarly, a member of a State Public Service Commission. These are the only provisions in the Constitution bearing on the appointment of Chairman and members of a State Public Service Commission. Now concededly none of these constitutional provisions was violated in making appointments of the 676 Chairman and members of the Haryana Public Service Commission nor was any legal provision breached and the appointments of the Chairman and members of the Haryana Public Service Commission were in conformity with the constitutional and legal requirements. If that be so, it passes our comprehension as to how the appointments of the Chairman and members of the Haryana Public Service Commission could be regarded as suffering from any infirmity or any selections made by them could be said to be vitiated, merely on the ground that they were not, in the opinion of the Division Bench of the High Court possessed of integrity, calibre or qualification. We may take an analogy to illustrate the point we are making. Suppose a District Judge is appointed by the Governor of the State in consultation with the High Court in accordance with the requirements of Article 233 and the appropriate rules made in that behalf.

Can a judgment delivered by him be assailed as invalid on the ground that he has not the requisite integrity, calibre or qualification ? The judgment may be set aside if it is wrong but not because it is given by a Judge who is lacking in integrity, calibre or qualification. Similarly, selections made by the Chairman and members of the Haryana Public Service Commission may be quashed if they are found to be vitiated by the influence of extraneous considerations or are made in breach of the rules, but they cannot be invalidated merely by showing in a general sort of way that they were not men possessed of high integrity, calibre or qualification.

Lastly, we do not think that the Division Bench of the High Court was justified in going into the question whether the Chairman and members of the Haryana Public Service Commission were appointed an account of caste considerations and political patronage or were lacking in integrity, calibre or qualification, when the validity of their appointments was not challenged in the writ petitions nor was any relief claimed for setting aside their appointments.

The validity of their appointments could not be questioned collaterally while considering the challenge to the selections made by them. This view receives support from the observations of Chinnappa 677 Reddy, J. speaking on behalf of the Court in C. Ranga Raju v. State of Andhra Pradesh [1981] 3 S.C.R. 474. There, the learned Judge pointed out: "The defective appointment of a de facto judge may be questioned directly a proceeding to which he be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the judge except as a judge. Two litigants litigating their private title cannot be permitted to bring in issue and litigate upon the title of a judge to his office. Otherwise as soon as a judge pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the judge is no judge. A judge's title to his office cannot be brought into jeopardy in that fashion. Hence the rule against collateral attack on validity of judicial appointments." We wholly endorse these observations and conclude that the principle underlying these observations must be held to be equally applicable in the present case and the title of the Chairman and members of the Haryana Public Service Commission cannot be allowed to be placed in jeopardy in proceeding for challenging the selections made by them. This ground of attack against the validity of the selections must therefore be rejected.

That takes us to the next ground of attack which found favour with the Division Bench of the High Courts, namely that the participation of Shri R.C. Marya and Shri Raghubar Dayal Guar in the process of selection introduced a serious infirmity in the selections. It was not disputed and indeed on the record it could not be, than when the close relatives of Shri R.C. Marya and Shri Raghubar Dayal Guar came up for interview, but, according to the Division Bench of the High Court, such limited withdrawal from participation was not enough and both the members, said the Division Bench ought to have withdrawn from the selection process altogether. The Division Bench of the High Court relied heavily on the fact that Trilok Nath Sharma, who was the son-in-law of the sister of Shri Raghubar Dayal Guar obtained 160 marks out of 300 in the viva voce test while Shakuntala Rani daughter-in- law of Shri. R.C. Marya obtained 131 marks and Balbir Singh brother of the son-in-law of Shri R.C. Marya obtained 130 marks and observed that "these 678 admitted facts are obviously telltale". The Division Bench went to the length of imputing nepotism and favouritism to the Chairman and members of the Haryana Public Service Commission by observing that each member of the Haryana Public Service Commissions adjusted the relatives of the others and awarded low marks in the interview to the other candidates with a view to ousting the latter and bolstering up the former in the merit list. We are pained to observe that such a serious aspersion should have been cast on the Chairman and members of the Haryana Public Service Commission without any basis or justification. Merely because Trilok Nath Sharma obtained 160 marks, Shakuntala Rani obtained 131 marks and Balbir Singh obtained 130 marks, no inference can necessarily be drawn that these high marks were given to them in viva voce examination undeservedly with a view to favouring them at the cost of more meritorious candidates. There is nothing to show that these three candidates who happened to be related to Shri Raghubar Dayal Guar and Shri R.C. Marya were not possessed of any requisite calibre or competence or their performance at the viva voce examination did not justify the marks awarded to them. The only circumstance on which the Division Bench relied for raising the inference that such high marks were given to these three candidates, not on merits, but as an act of nepotism with a view to unduly favouring them so that they can some within the range of selection, was that out of these three candidates, two were related to Shri R.C. Marya and one was related to Shri Raghubar Dayal Gaur. This inference, we are constrained to observe, was wholly unjustified. We cannot help remarking that the Division Bench indulged in surmises and conjectures in reaching the conclusion that high marks were given unjustifiably to these three candidates at the viva voce examination with a view to pushing them up and low marks were deliberately given to other more meritorious candidates with a view to pushing them down and thus facilitating the selection of these three candidates who would not otherwise have come within the range of selection. We fail to appreciate what is the basis on which the Division Bench could observe that these three candidates got high marks at