W.P.(C)/7122/2020 of ABHISHEK KUMAR Vs 1. OFFICE OF DISTRICT AND SESSIONS JUDGE (HQ) & ANR.

$~A-15 & 16

*IN THE HIGH COURT OF DELHI AT NEW DELHI

%Date of decision: 20.04.2021

+W.P.(C) 7122/2020 & CM APPL. 24183/2020

ABHISHEK KUMAR

..... Petitioner

Through:Mr. Ajay Garg, Advocate

versus

OFFICE OF DISTRICT AND SESSIONSJUDGE (HQ) & ANR.

..... Respondents

Through:Ms. Avnish Ahlawat, StandingCounsel DSJ with Mr. N.K. Singh& Ms. Palak Rohmetra, Advocates

AND

W.P.(C) 11136/2020 & CM APPL. 34758/2020

ABHISHEK KUMAR

..... PetitionerThrough:Mr. Ajay Garg, Advocate

versus

OFFICE OF DISTRICT AND SESSIONSJUDGE (HQ) & ANR.

..... RespondentsThrough:Ms. Avnish Ahlawat, StandingCounsel DSJ with Mr. N.K. Singh& Ms. Palak Rohmetra, Advocates

CORAM:

HON'BLE MS. JUSTICE JYOTI SINGH

JYOTI SINGH, J.(Oral)

1.Present writ petitions have been preferred by the Petitionerchallenging the impugned action of the Respondents whereby, thedescriptive test of 100 marks has been dispensed with and consequently,

the marks of the interview have been reduced during the process ofrecruitment to the posts of Junior Judicial Assistant (hereinafter referredto as ‘the JJA’) and Data Entry Operator (Grade-A) (hereinafter referredto as ‘DEO (Grade-A)’). As the Petitioner had applied in theGeneral/Unreserved category, these petitions pertain only to the saidcategory. Since common questions are involved in both the writ petitions,they are being disposed of by common judgment and facts to the extentthey are different in the two writ petitions are being separately narratedhereinafter.

W.P. (C) 7122/2020

2.Respondent No.1/Office of District & Sessions Judge (HQs) issueda combined Vacancy Notice/Advertisement on 14.09.2020 invitingapplications for recruitment to the vacant posts of Senior PersonalAssistant, Personal Assistant, Junior Judicial Assistant and Data EntryOperator for the Office of District & Sessions Judge (HQs) Delhi andOffice of Principal Judge, Family Courts (HQs) Delhi. Present petition isconfined to the post of JJA for which, total 161 vacancies were advertised,out of which 62 were in the Unreserved Category.

3.Scheme of the examination delineated the selection into fourphases/Tiers, as follows:-

Tier I:

Objective test with 120 questions for total 120 marks.

Tier II:

Skill test (typing test): Candidates who scored 50% marks (GeneralCategory) i.e. 60 marks (50% of 120) in Tier I (MCQ test) or 25times of the total vacancies (whichever will the minimum number)were to be called for the skill test @ 40 w.p.m. The skill test wasqualifying in nature.

Tier III:

Descriptive test: Candidates who qualified the skill test were to becalled for the descriptive test in English Language with total 100marks. The test included Essay, Grammar and Translation withminimum passing marks in General Category being 50% i.e. 50marks out of 100 marks.

Tier IV:

Interview of 30 marks (for maximum of 10 times of the totalvacancies). The minimum passing marks for General categorycandidates were 40% of 30 marks i.e. 12 marks.

4.It was notified in the advertisement that the selection of thecandidatesshallbeinaccordancewith‘DelhiDistrictCourtsEstablishment (Appointment & Conditions of Service) Rules, 2012(hereinafter referred to as ‘the Recruitment Rules’). Final merit list ofsuccessful candidates was to be prepared on the basis of marks obtainedin aggregate of the performance in objective test (MCQ), descriptive testand interview.

5.Petitioner fulfilled the eligibility criteria and submitted hisapplication for the post of JJA in the Unreserved Category on 21.01.2019.His application was found to be in order and an E-admit card was issuedto him on 23.11.2019. Petitioner appeared for the objective test on29.11.2019 and the result thereof was declared in January, 2020.

6.As per the Petitioner, there were 1677 candidates who qualified theobjective test for appearing in the skill test. Petitioner also qualified with87.5 marks with rank of 1606. On 21.01.2020, the skill test wasconducted in which the Petitioner participated. Result of the test waspublished in February, 2020 and 191 candidates in the UnreservedCategory qualified the skill test. Petitioner also qualified the test with aspeed of 48.90 w.p.m.

7.On 05.08.2020, Petitioner came across notice informing thecandidates that on-line interview, through Video Conferencing, wasscheduled to commence from the last week of August, 2020, with nomention of the Tier-III descriptive test. On 19.08.2020, circular wasissued by the Respondents in continuation of the earlier notice dated05.08.2020, intimating the dates for the on-line interview as 30.08.2020and 12.09.2020 and that the descriptive test was dispensed with. Revisedcriteria of interview marks was also notified, which was as follows:-

8.On 03.09.2020, another circular was issued by the Respondentscalling upon the candidates from far flung areas to give their willingnessfor interviews to be conducted on 27.09.2020. Through circular dated18.09.2020, Petitioner was informed that his interview shall be conductedon 27.09.2020 at his native place Patna, Bihar.

9.As per the Petitioner, the change in the selection procedure and thescheme of the examination, by dispensing with the descriptive test andreducing the marks of the interview, was arbitrary and unfair and thePetitioner, through an e-mail, sent representation dated 21.09.2020 tothe Respondents challenging the said action. It was also stated in therepresentation that the Petitioner will be participating in the interview,scheduled on 27.09.2020, under protest and without prejudice to hisrights and remedies in law.

10.Petitioner appeared for the interview on the scheduled date, underprotest, and thereafter, as no response was received to his representation,he approached this Court by way of the present petition seeking thefollowing reliefs:-

a.to quash the Circular dated 19-08-2020 and the previousand subsequent circulars of the respondents inviting thecandidates directly for Interview by bypassing/dispensing withthe Descriptive Test of 100 marks and reducing the Interview to12 Marks being illegal, arbitrary and violative of Articles 14and 16 of the Constitution of India and prevalent rules andadvertisementissuedbytherespondentsandquashallsubsequent steps taken by the respondent thereto; and

b.direct the respondents to conduct as well as complete theexamination and selection process as per the notified scheme

and selection procedure given in the said Advertisement dated14-09-2020 and prevalent Rules as applicable.

W.P. (C) 11136/2020

11.AcombinedAdvertisement/VacancyNoticewasissuedbyRespondent No. 1 on 14.09.2019. Since the selection to the post of DEO(Grade-A) is through the same advertisement as for the post of JJA above,details of the advertisement are not being repeated for the sake of brevity.The narrative of facts hereinunder is only to the extent they are differentand specific to the present petition.

12.14 posts of DEO (Grade-A) were advertised, out of which, 9 werein the Unreserved Category. The scheme of examination was the same asfor the post of JJA, referred to above; the difference only being withrespect to the interview marks. The interview marks were 35 (formaximum of 10 times of the total vacancies) and the minimum passingmarks in the Unreserved Category were 14 i.e. 40% of 35 marks.

13.Petitioner applied for the Post of DEO (Grade-A) in theUnreserved Category on 21.09.2019, being eligible for the post. Heappeared for the objective (MCQ) examination on 31.01.2020 and theresult was declared in January, 2020.97 candidates in total qualified inthe Unreserved Category for the skill test. Petitioner also qualified with81.50 marks and his rank was 29 out of 97 candidates.

14.Computer based skill test was held on 23.10.2020 and the resultwas published in November, 2020. 19 candidates under the Unreserved

Category successfully qualified the skill test including the Petitioner, whoachieved typing speed of 54.08 w.p.m. and according to him, he was thesecond best in the skill test.

15.On 07.12.2020, notice was issued by the Respondents informingthat on-line interviews, through Video Conferencing, were scheduled on21.12.2020 and that the descriptive test had been dispensed with. Revisedcriteria of marks for the interview was also notified as follows:-

16.Aggrieved by the change in the selection process and the scheme ofexamination, Petitioner represented to the Respondents on 17.12.2020and on failure to get redressal, the present writ petition was filed seekingthe following reliefs:-

a.quash the Notice dated 07-12-2020 of the respondentsinvitingthecandidatesincludingpetitionerdirectlyforInterview by bypassing/dispensing with the Descriptive Test of100 marks and reducing the Interview to 12 Marks being illegal,arbitrary and violative of Articles 14, 16 and 21 of theConstitutionofIndiaandapplicablerules2012andadvertisementissuedbytherespondentsandquashallsubsequent steps/actions taken by the respondent in pursuancethereto in the recruitment of Data Entry Operator; and

b.direct the respondents to conduct as well as complete theexamination and selection process as per the notified schemeand selection procedure given in the said Advertisement dated14-09-2020 and prevalent Rules as applicable.

17.The contention of learned counsel for the Petitioner, Mr. Ajay Garg,assailing the impugned action is that it was not open to the Respondentsto dispense with the Tier III descriptive test of 100 marks and reduce theinterview marks from 30 to 12 for the post of JJA and from 35 to 12 forthe post of DEO (Grade-A), calculated at 10% of 120 marks allocated forthe objective test. He contends that this action of the Respondents isviolative of the Vacancy Notice/Advertisement as the detailed scheme ofexamination had already been prescribed.It is submitted that theAdvertisement clearly delineated the process of selection under thescheme of examination into four phases/Tiers, viz., objective test, skilltest, descriptive test and interview.By dispensing with the descriptivetest of as many as 100 marks, Respondents have changed the rules of thegame after it started.He submits that law in this regard is no longer resintegra that rules of the game cannot be changed in the midst of the game.Reliance is placed for this proposition on the judgment of the SupremeCourt in the cases of Maharashtra SRTC vs. Rajendra Bhimrao Mandve,(2001) 10 SCC 51; K.Manjusree vs. State of Andhra Pradesh,(2008) 3SCC 512; and judgments of this Court in the cases of Hemani Malhotravs. High Court of Delhi, (2008) 7 SCC 11 and Ramesh Kumar vs. HighCourt of Delhi(2010) 3 SCC 104.

18.It is next contended that the impugned action of dispensing thedescriptive test in Essay, Grammar and Translation, in order to test the

academic knowledge as well as writing skills, is in violation of theRecruitment Rules in question. Rule 4 of the Recruitment Rules providesthe method of recruitment and qualification, etc., wherein, it is stipulatedthat for posts specified in Column (2) of Schedule B, the method ofrecruitment shall be as specified in corresponding entries in Columns (3)& (4) thereof. The method of recruitment, as provided in Schedule forthe post of JJA, is by direct recruitment to 80% of the posts and isthrough written test and interview; while that for the post of DEO(Grade-A), is through direct recruitment by an open competitiveexamination and skill test. Thus, under the Recruitment Rules, selectioncan only be by ‘written test’ which connotes descriptive test, as wasrightly prescribed in the scheme of examination, when the Advertisementwas issued. Written test cannot be an objective test, based on MultipleChoice Questions.

19.In order to substantiate this point, learned counsel for the Petitionersubmits that wherever the Rule making Authority intended that themethod of recruitment was to be through the mode of an objective testand interview, it was so specifically stipulated in the Recruitment Rules.As an illustration, it is pointed out that for the posts of Process Server,Peon, Chowkidar and Mali, the method of recruitment, as notified, isthrough an objective test and interview. However, wherever the intentwas to recruit through an examination, other than objective, words werecarefully drafted and ‘written test’ was prescribed. As against the twoposts in question in the present petition, Recruitment Rules clearlyprescribe ‘written test’ and ‘competitive examination’ as method of

recruitment and therefore, the Respondents cannot equate ‘written’ testwith ‘objective’ test. It is therefore contended that the impugned action isarbitrary, illegal and void ab initio, being against the Recruitment Rulesand thus the process of selection, post the skill test, vitiates and deservesto be quashed.

20.Learned counsel places reliance on the judgment of the SupremeCourt in Renu & Ors. vs. District & Sessions Judge, Tis Hazari Courts,Delhi, (2014) 14 SCC 50, for the proposition that vacancies for any post,either in the High Court or in Courts subordinate to the High Court, mustbe filled in strict compliance of the Statutory Rules in question and anyappointment made in contravention of the Statutory Rules would be voidab initio.

21.It is next argued that the Respondents do not have the power torelax the Recruitment Rules, except for Rule 44 but even that is withrespect to serving Officers, and in any event, it is not the case of theRespondents that the change in the selection process was in exercise ofpower of relaxation under Rule 44. In the case of P.K. Ramachandra Iyervs. Union of India,reported as (1984) 2 SCC 141, the Supreme Court hasheld that once there is no power to relax the essential qualifications, theentire process of selection in contravention of the Advertisement and theRules, is illegal and vitiated.Reliance is also placed on the judgment ofthe Supreme Court in Secretary A.P. Public Service Commission vs. B.Swapna, (2005) 4 SCC 154 for the same proposition.

22.It is argued that it is no longer res integra that the SelectionCommittee does not have any inherent jurisdiction to lay down the norms

for selection in addition to what are prescribed under the Rules. Tosubstantiate the argument, reliance is placed on the judgments in UmeshChandra Shukla vs. Union of India, (1985) 3 SCC 721; DurgacharanMisra RC v. State of Orissa(1987) 4 SCC 646; and Krushna ChandraSahu (Dr.) v. State of Orissa, (1995) 6 SCC 1.

23.The impugned action is also assailed by contending that everyaction of the State or its Instrumentality should be fair, legitimate, aboveboard and without any aversion or discrimination and nepotism as held bythe Supreme Court in State of Orissa vs. Mamta Mohanty, (2011) 3 SCC436, where it was observed that if the procedure adopted by an Authorityoffends fundamental fairness or shocks the conscious, the same standsvitiated.

24.It is further contended argued that the Supreme Court has clearlyheld in Ramjit Singh Kardam vs. Sanjeev Kumar, (2020) SCC OnlineSC 448 that dispensing with written examination will have the effect ofdowngrading and lowering the merit in selection process and hadaccordingly quashed the order dispensing with the written examination.Similarly, in the present case, by dispensing with the written examinationof 100 marks, Respondents have lowered the ultimate standard inselection and compromised merit. It is written test which testifies acandidate’s academic knowledge, writing skills and knowledge oflanguage and translation, which are sine qua non for the posts in question.It is also argued that even this Court has in the past conducted writtenexaminations for the Post of JJA and did not dispense with the same even

though in the year 2017-2018, very few candidates had qualified in theskill test.

25.Percontra,Ms.AvnishAhlawatlearnedcounselfortheRespondents opposes the petitions and argues that it is settled law that ifa candidate has consciously participated in selection process, he or shecannot turn around and challenge the process. Reliance is placed on thejudgment of the Supreme Court in Madan Lal and Ors. vs. State of J & K& Ors., (1995) 3 SCC 486 and in Anupal Singh & Ors. vs. State of UP &Ors., (2020) 2 SCC 173, wherein reliance was in turn placed on thejudgments in N.T.Devin Katti vs. Karnataka Public Service Commission,(1990) 3 SCC 157 and Union of India vs. Ravi Prakash Gupta,(2010) 7SCC 626. It is argued that the Petitioner had participated in the selectionprocess upto the stage of skill test, i.e., Tier II, without raising anygrievance or objection to the advertisement, clearly stipulating that theDistrict & Sessions Judge could dispense with any stage of the selection,subject of course to the conditions mentioned therein. He has taken acalculated risk and only because he did not ultimately succeed inachieving marks required to come in the merit list, above the cut-off, thepresent petitions were filed assailing the selection process and the writpetitions deserve to be dismissed on this ground alone.

26.Without prejudice to the said contention, with respect to the post ofJJA, it is submitted that it is true that when the Advertisement waspublished, the scheme of examination prescribed four Tiers, whichincluded descriptive test of 100 marks. Total 24,173 number ofcandidates had applied on-line for the post of JJA. 4471 candidates

qualified in the written test, out of total of 14,256, who had appeared.Petitioner’s name was at serial number 1606 having secured 87.5 marksin Unreserved Category, the highest being 115 in the said category.

27.In view of the urgency in recruitment of Ministerial Staff, theRecruitment Committee in its meeting dated 06.01.2020, decided todispense with the descriptive test, subject to approval of District andSessions Judge (HQs), which approval was granted. Candidates 25 timesof total vacancies, who had secured minimum cut-off marks, were calledfor the skill test. In the Unreserved Category candidates upto serialnumber 1677 with cut-off marks 86.75, were called for the skill test.

28.Computerized skill test, which was only qualifying in nature, wasconducted on 21.01.2020 and 3775 candidates in all categories hadappeared, out of which only 460 candidates qualified the skill test. In themeeting held on 14.02.2020, the Recruitment Committee, resolved toreduce the interview marks to 12 in terms of Rule 11(1) of theRecruitment Rules, with direction to upload the decision to dispensewith the descriptive test as well as the revised criteria of the interviewmarks, on the website of the District Court. Several representations werereceived from the candidates as consequence of this and were dulyconsidered and decided. The decision to reduce the interview marks wastaken in consonance with the recommendations of Committee of thisCourt constituted to look into the Recruitment Rules of the staff of DelhiHigh Court and District Courts, conveyed vide letter dated 05.12.2016.As per the recommendations, while filling up the vacancies, the criterionof weightage to the interview was to be capped at 15%. Initially, while

formulating the scheme of examination, 30 marks were prescribed for theinterview as this was not more than 15% of 220 marks, i.e., 120 for MCQtest and 100 for descriptive test. However, once decision was taken on06.01.2020 to dispense with descriptive test, the total marks reduced to120 and keeping in view the recommendations of this Court, theinterview marks were scaled down to 12 so as to ensure that theweightage does not exceed 15%.

29.It is further submitted that due to Pandemic Covid-19 furtherselection process was delayed. With the approval of this Court to holdvirtual interviews for various posts, on 05.08.2020 notice was issued forholdinginterviewsandatentativeschedulewaspublished.Incontinuation, another notice was issued on 19.08.2020 informing thecandidates that 460 candidates were eligible for the interview, out ofwhich, 405 are residents of Delhi and NCR and 55 are from other parts ofIndia. 30.08.2020 and 12.09.2020 were intimated to be the dates forinterview for those residing in Delhi and NCR. Vide the same notice,candidates were informed that descriptive test was dispensed with andaccordingly, 12 marks were allocated towards interview under the revisedcriteria, being 10% of 120 marks. Vide circulars dated 03.09.2020 and18.09.2020, interview was notified for 27.09.2020, for candidates fromfar flung areas.

30.Petitioner objected to the change of criteria on 21.09.2020 allegingarbitrariness and violation of the scheme of examination. Representationwasconsideredandrejectedon22.09.2020bytheRecruitmentCommittee. Final result was declared for 63 posts in the Unreserved

Category on 13.12.2020 and the last selected candidate in the saidcategory secured 103.494 marks in MCQ written test and 7 marks ininterview, totaling to 110.494 marks. Petitioner secured only 87.5 marksin the MCQ test and 5 in the interview, totaling to 92.5 marks and is wellbelow the cut-off. The last candidate in the Unreserved Category in thewait list has secured 109.43 marks.

31.With respect to the post of DEO (Grade-A), it is submitted that 14posts of DEO (Grade-A) were advertised and the scheme of examinationwas the same as for JJA, except for the interview marks, which were 35instead of 30. 183 candidates qualified the MCQ test and were called forthe skill test, out of which 33 qualified the skill test. The RecruitmentCommittee, with the approval of Respondent No. 1, dispensed with thedescriptive test in its meeting held on 02.12.2020 and notified thedispensing of the test as well as the revised criteria of the marks for theinterview, by notice published on the website of the District Courts, on07.12.2020. Petitioner represented against the same on 17.12.2020 andthe representation was rejected, after due consideration.

32.After the interview, merit list has been published. Petitioner hassecured 81.50 marks in the MCQ test and 05 marks in the interviewmaking the total to 86.5. The last candidate selected has secured 96.25marks and the merit of the Petitioner is far below the cut-off. Successfulcandidatesareundergoingtheprocessofmedicalexamination/antecedents verification for appointments against both the posts inquestion.

33.Responding to the contentions of the Petitioner, Ms. AvnishAhlawat learned counsel for the Respondents argues that there is nochange in the rules of the game by dispensing with the descriptive test. Asa matter of fact, while issuing the Advertisement itself it was mentionedtherein that the District & Sessions Judge (HQs) reserves the right tomodify or dispense with any stage of the selection process, if deemedappropriate, especially in view of the number of applications received andas may be permissible under the Recruitment Rules. The Advertisementwas published on 14.09.2020 and none of the candidates challenged thesame including the Petitioner. On the contrary, Petitioner participated inthe selection process upto Tier II, without any protest or demur andwithout laying challenge to the Advertisement.

34.It is contended that the decision to dispense with the descriptivetest was taken in the meeting held on 06.01.2020 in accordance with thestipulation in the Advertisement for the reason that there was anadministrative urgency and exigency. The Office of District & SessionsJudge (HQs) was facing severe crunch of ministerial staff and in additionthe induction training of approximately 125 Judicial Officers in the cadreof DJS was likely to be completed by March, 2020. In the absence ofministerial staff, it was impossible to conduct the Courts. Further,recruitment process of 75 DJS Officers and 30 DHJS Officers wasunderway. Conducting and evaluation of descriptive test is time-consuming process and thus looking at the urgency, conscious decisionwas taken to dispense with it.

35.The argument of the Petitioner that dispensing the descriptive testis contrary to the Recruitment Rules is misconceived. The term ‘writtentest’, prescribed in the Recruitment Rules cannot connote only adescriptive test, as alleged by the Petitioner. It cannot be argued that anobjective test based on Multiple Choice Questions is not written test andthe Petitioner has been unable to show any law which supports theinterpretation placed by the Petitioner. Objective test in the form ofMultiple Choice Questions is ‘written test’ and certainly tests theacademic knowledge of candidate as only those who are well versedwith the subject would be in position to attempt the MCQ paper andanswer the correct option. The entire scheme of the Recruitment Rulesenvisages that it is the Recruitment Committee which is empowered todecide the nature and pattern of the examination, in accordance with theRecruitment Rules and the Rules do not qualify the words written test asobjective or subjective, it is purely in the domain of an employer to fixthe criteria of recruitment/selection and Courts should be slow ininterfering in the examination processes. The impugned action is notarbitrary and test has been dispensed with, uniformly for all candidatesand except for the Petitioner no candidate has challenged the said action.

36.Distinguishing the judgments relied upon by the Petitioner, learnedcounsel for the Respondents submits that there is no violation of theRecruitment Rules applicable to the present selection as the objective testhas been held and the same is ‘written test’ under the Recruitment Rules.The judgment in Renu & Ors. (supra)would thus not apply as theAdvertisement specifies the number of posts, qualifications, eligibility

criteria etc. as per the provisions of the Recruitment Rules. The judgmentin Hemani Malhotra (supra)does not help the Petitioner as there is nochange in the rules of the game and in the Advertisement itself thecontingency of dispensing with any stage of selection was categoricallymentioned. The judgment in Ramjit Singh Kardam (supra)does not applyas the facts of the present case are totally different. In the said case, awritten examination was prescribed and held but eventually cancelled andfinally the selection was held purely on the basis of interviews.

37.Mr. Garg learned counsel for the Petitioner, arguing in rejoinder,submits that the Petitioner is not estopped from challenging the selectionprocess inasmuch as he had challenged the process before he participatedin the interview and the participation was under protest, which was dulycommunicated to the Respondents by e-mail dated 21.09.2020. Further,as results were not declared so far, he could not be called an unsuccessfulcandidate.

38.In response to the argument that the descriptive test has beendispensed with uniformly for all candidates, it is argued that once theimpugned action has resulted in lowering the standard of selection, bydispensingwithatestbywhichthewriting,translationandcomprehension skills of the candidates were to be tested, it is of noconsequence that the criteria was applied uniformly. Respondents areheavily relying on the stipulation in the Advertisement that the District &Sessions Judge (HQs) had the power to dispense with any stage of theprocess, ignoring the fact that this was with the caveat that the actionmustbeinconsonancewiththeRecruitmentRules.Moreover,

Respondents have not given any plausible and satisfactory explanation asto why the Respondents had dispensed with the test and the ground of‘urgency’ is not sufficient justification.

39.I have heard the learned counsels for the parties and examined theirrival contentions.

40.The facts with regard to the issue of the Advertisement forrecruitment to the posts of JJA and DEO (Grade-A) and the scheme of theexamination prescribed in the Advertisement are not in dispute betweenthe parties. It is equally undisputed that initially the scheme ofexamination provided four Tiers of examination, which included adescriptive test of 100 marks followed by an interview with 30 marks forthe post of JJA and 35 marks for the post of DEO (Grade-A). However,subsequently, descriptive test was dispensed with and there was aconsequent reduction in the interview marks, which the Respondentsclaim is on account of direction by this Court to peg the weightage ofthe interview marks at 15%.

41.The real bone of contention between the parties is dispensing thedescriptive test and the reduction in the interview marks.

42.First and foremost, the contention of the Respondents is that havingparticipated in the selection process, it is not open to the Petitioner tochallenge the selection procedure viz. dispensing the descriptive test andreduction in the interview marks. While there may be merit in thecontention of the Petitioner that he had participated in the interview‘under protest’, after he had made representation to the Respondents

aggrieved with the impugned action, however, the argument of theRespondents has different complexion. What is argued by theRespondents is that once the Advertisement itself stipulated that theDistrict & Sessions Judge (HQs) could modify or dispense with any stageof the selection process, it was known to the candidates that such aneventuality or contingency could occur in the future. Thus, not havingchallengedthisunambiguousandcategoricalstipulationintheAdvertisement and having taken the calculated risk of participating in thefirst two phases of the selection process, Petitioner cannot challenge theaction taken pursuant to the discretion exercised by the RecruitmentCommittee and approved by the Competent Authority. At this stage, Imay extract hereinunder the relevant portion of the Scheme ofExamination:

“The Descriptive test will be conducted for the posts of Sr.PersonalAssistant,PersonalAssistant,JuniorJudicialAssistant, & Data Entry Operator. However, District &Sessions Judge (HQ), Delhi reserves the right to modify ordispense with any stage of the selection process, if deemedappropriate especially in view of the number of applicationsreceived for any particular post and as may be permissibleunder Delhi District Court (Establishment) Rules, 2012.”(emphasis added)

43.I am in complete agreement with the Respondents on this aspect.Having known that any stage of the selection process could be dispensedwith, petitioner admittedly did not challenge the Advertisement andparticipated upto the skill test, without demur. Perhaps the exclusion ofthe Petitioner from the merit list on account of scoring marks below thecut-off, was trigger to the representation and filing of the present

petitions. Though, the participation in the interview was under protest butit cannot be overlooked that the Advertisement and the power of theCompetent Authority to dispense with any stage of selection processwas never assailed.

44.Proposition of law that candidate who participates in selection,taking calculated chance, cannot turn around and challenge the criteria,is well settled. In Madan Lal (supra), the Supreme Court held as under:-

“9. ………..It is now well settled that if candidate takes acalculated chance and appears at the interview, then, onlybecause the result of the interview is not palatable to him, hecannot turn round and subsequently contend that the process ofinterview was unfair or the Selection Committee was notproperly constituted. In the case of Om Prakash Shukla v.Akhilesh Kumar Shukla, 1986 Supp SCC 285, it has beenclearly laid down by Bench of three learned Judges of thisCourt that when the petitioner appeared at the examinationwithout protest and when he found that he would not succeed inexaminationhefiledapetitionchallengingthesaidexamination, the High Court should not have granted any reliefto such petitioner.”

45.The said proposition has been reiterated and reaffirmed by theSupreme Court in several judgments, to quote few, K.A. Nagamani vs.Indian Airlines and Ors.,(2009) 5 SCC 515; Manish Kumar Shahi vs.State of Bihar and Ors., (2010) 12 SCC 576; Madras Institute ofDevelopment Studies and Ors. vs. K. Sivasubramaniyan and Ors., (2016)1 SCC 454; and Ashok Kumar and Ors. vs. State of Bihar and Ors.,(2017) 4 SCC 357.

46.Reliance of the Petitioner on the judgment in Ramjit Singh (supra),in my view, is misplaced in the facts of the present case. In the said casethe Supreme Court noticed as matter of fact that the initial criteriapublished by the Commission, on three occasions, was given up step bystep and no criteria was published for holding an interview. It was heldthat when the Commission did not publish any criteria on the basis ofwhich candidates were going to be selected and they had no knowledge ofthe criteria, they cannot be shut out from challenging the process whenthey ultimately learn of the same. Relevant para of the judgment is asfollows:-

“39…The criteria, which was published by the Commission on28.12.2006, 11.06.2008 and 11.07.2008 were given up step bystep and no criteria was published for interview, which wasscheduled to take place in from 2 September to 17 October,2008. When Commission had not published any criteria on thebasis of which candidates were going to be subjected forselection process and the candidates participated in theselection without knowing the criteria of selection, they cannotbe shut out from challenging the process of selection whenultimately they came to know that Commission step by step hasdiluted the merit in selection. When candidate is not aware ofthe criteria of selection under which he was subjected in theprocess and the said criteria for the first time is publishedalong with final result dated 10.04.2010, he cannot be estoppedfrom challenging the criteria of selection and the entire processof selection….”

47.Thus,inmyview,havingknownthestipulationintheAdvertisement, that any stage of the selection process could be dispensedwith and having failed to challenge the same, coupled with participationin the process, Petitioner is not entitled to lay challenge to the process.

48.Albeit this ground is sufficient to dismiss the petition, however,since parties have addressed arguments on other grounds, I may addressthem. The argument that the impugned action violates the RecruitmentRules is not tenable on mere reading of the Rules. Relevant part of theRecruitment Rules for the posts of JJA and DEO (Grade-A), respectively,are as under:-

“4. Method of recruitment and qualification etc.-

In respect of each category of posts of the Servicespecified in column (2) of Schedule B, the method ofrecruitment and minimum qualification, shall be as specified inthe corresponding entries in columns (3) and (4) thereof.

Schedule

49.The mode of recruitment for the post of JJA is 80% by directrecruitment on the basis of written test and interview and for the post ofDEO (Grade-A) is direct recruitment through an open competitiveexamination and skill test. Thus, what is prescribed is ‘written test’ and‘competitive examination’, respectively. Significantly, the words used inthe Recruitment Rules have not been qualified as objective or descriptiveor subjective.Without doubt, the objective of selecting persons intoany public service has always been to select the best and the most suitableperson. Justice O. Chinnappa Reddy, J. in Lila Dhar v. State of Rajasthan,(1981) 4 SCC 159 had observed as follows:-

“4. The object of any process of selection for entry into publicservice is to secure the best and the most suitable person for thejob, avoiding patronage and favouritism. Selection based onmerit, tested impartially and objectively, is the essentialfoundation of any useful and efficient public service. So, opencompetitive examination has come to be accepted almostuniversally as the gateway to public services.

“The ideal in recruitment is to do away with unfairness.

Competitive examinations were the answer to the twin problemsrepresented by democracy and the requirements of goodadministration. They were the means by which equality ofopportunity was to be united with efficiency.... By this meansfavouritism was to be excluded and the goal of securing the bestman for every job was to be achieved.

Open competitive examinations are peculiarly democraticinstitution. Any qualified person may come forward. Hisrelative competence for appointment is determined by neutral,disinterested body on the basis of objective evidence suppliedby the candidate himself. No one has ‘pull’; everyone stands onhis own feet. The system is not only highly democratic, it is fairand equitable to every competitor. The same rules govern, the

same procedures apply, the same yardstick is used to testcompetence.”

50.In para 5 of the same judgment, the Supreme Court hadinterestingly gone in the question as to how competitive examination isto be devised and had referred to Kothari Committee on RecruitmentPolicy and Selection Methods and I quote:-

“5. How should the competitive examination be devised? TheKothari Committee on Recruitment Policy and SelectionMethods in their report said:

“A system of recruitment almost totally dependent onassessment of person's academic knowledge and skills,as distinct from ability to deal with pressing problemsof economic and social development, with people, andwith novel situations cannot serve the needs of today,much less of tomorrow.... We venture to suggest thatour recruitment procedures should be such that we canselectcandidateswhocannotonlyassimilateknowledgeandsiftmaterialtounderstandtheramifications of situation or problem but have thepotential to develop an original or innovative approachto the solution of problems.”

Itisnowwell-recognisedthatwhileawrittenexamination assesses candidate's knowledge andintellectual ability, an interview-test is valuable toassess candidate's overall intellectual and personalqualities. While written examination has certaindistinct advantages over the interview-test there are yetno written tests which can evaluate candidate'sinitiative, alertness, resourcefulness, dependableness,cooperativeness,capacityforclearandlogicalpresentation, effectiveness in discussion, effectivenessin 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 degree of error,byaninterview-test,muchdependingontheconstitution of the Interview Board.”

51.In the case of Ashok Kumar Yadav vs. State of Haryana, (1985) 4SCC 417, Supreme Court considered the merits of written examinationand held as under :

“23. This Court speaking through Chinnappa Reddy, J.pointed out in Lila Dhar v. State of Rajasthan that the object ofany process of selection for entry into public service is tosecure the best and the most suitable person for the job,avoiding patronage and favouritism. Selection based on merit,tested impartially and objectively, is the essential foundation ofany useful and efficient public service. So open competitiveexamination has come to be accepted almost universally as thegateway to public services. But the question is how should thecompetitiveexaminationbedevised?Thecompetitiveexamination may be based exclusively on written examinationor it may be based exclusively on oral interview or it may be amixture of both. It is entirely for the Government to decidewhat kind of competitive examination would be appropriate ina given case………………”. (emphasis added)

52.The question that arises is whether by dispensing with thedescriptive test, Respondents have violated the Recruitment Rules, asalleged by the Petitioner. First and foremost, the nomenclature ‘writtentest’ does not connote or imply only descriptive/subjective test,speaking,generallyand broadly.Thewordsarecommonly andinterchangeably used to refer to both, objective and subjective tests. Inthis regard, I may refer to few judgments, where, although this questionwas directly not in issue but the facts enable one to understand what thewords ‘written test’ imply and are commonly understood and used in thecontext of recruitment process. In the cases referred below, the

advertisements referred to the examination as ‘written test’, but the actualmode of recruitment was by an objective test based on Multiple ChoiceQuestions. This is evident from the following paras in Rajesh vs. Unionof Indiabeing O.P. No. 13548 of 2001, decided on 20.12.2001:

“2. CBI. Invited applications for appointment to 134 post ofConstableMale/Femalewhichareavailablefordirectrecruitment in various branches located all over India.Qualifications prescribed for the post of Constable (motorTransport) are:a) Secondary School Examination Pass or equivalentfrom recognized Broad/Matriculate/10th Class pass.b) Possession of valid Driving Licence for Light/Heavyfour wheeler vehicles and experience in driving of thevehicle.Age limit prescribed was between 18 to 27 years as on24.4.2000. Upper age limit is relaxable by five years for SC/STand three years for OBC. Candidates are subjected to physicalefficiency test, written test as well as interview. Candidates whocome in merit will have to undergo medical examination and todeterminemedicalfitnessforappointment.Writtenexamination proposed was of objective type multiple choicequestions. Candidates will have choice to write the examinationeither in Hindi or in English language. Written examinationconsists of subjects such as 'General Studies' and 'ElementaryMathematics. Questions in General Studies consist of History,Geography, Civics, Current Affairs and General Knowledge asexpected of Class X (CBSE) student. Questions in ElementaryMathematics consist of Arithmetic, Algebra and Geometry asexpected of Class X (CBSE) student and only thosecandidates would be permitted to appear in the interview whoscore not less than 40% (forty percent) marks in the writtenexamination.Candidateswhoqualifyinthewrittenexamination will have to appear for an interview before an

Interview Board. Interview would be of 20 marks. The entireselection process would be completed within four days.”(emphasis added)

53.Madras High Court in K. R. Shanthi vs The Secretary toGovernment, Education Department, being W.P. No. 21170/2012 & Ors.,decided on 01.10.2012, observed as under:

“2. As per the scheme of the examination, the writtenexamination consists of single paper of three hours durationwith 150 marks. The question paper is of objective type withmultiple-choice questions. The marks allotted to the mainsubject, Educational Methodology and General knowledge are110 marks, 30 marks and 10 marks respectively. Based on thewritten examination, the candidates will be short-listed forcertificate verification and finally the results will be publishedthrough press/media. If more than one candidate secures thelowest or same cut-off mark for the particular communal turn,all such candidates will be called for certificate verification andso the number of candidates called for certificate verificationwill be slightly higher than the number of vacancies.”(emphasis added).

54.A reading of the judgments aforementioned shows that the term‘writtentest’isinterchangeablyusedandincludesanobjectiveexamination as well. The word competitive examination in any case callsfor no interpretation as it is common knowledge that they are objectiveas well as subjective. With the advancement of technology more andmore competitive examinations are being held ‘on-line’ as objective tests,based on MCQs, while the nomenclature used in the Advertisements is‘written test’ or ‘competitive examination’.

55.Coming to the present case, the Recruitment Rules prescribe awritten test. The word ‘written’ only means and connotes something

which is not oral or spoken and is transcribed on paper or with theincreasing technology, digitally. Objective test would certainly qualify tobe written test. This Court cannot read words into the RecruitmentRules, which do not exist and in this background the contention of thePetitioner that the Recruitment Rules mandate descriptive test onlycannot be sustained. Admittedly Respondents have held an Objective testand thus it cannot be said that written test was not held.

56.The position taken by the Petitioner that this Court as well as theSubordinate Courts have been holding descriptive tests in the past forfilling up the posts of JJAs, is certainly uncontroverted. However, in myview, the norms and practice cannot be sufficient ground for this Courtto read the Recruitment Rules differently from the way are drafted. Mostcertainly it is open to the Respondents to test candidates through adescriptive test, but the action of dispensing cannot be held violative ofthe Rules.

57.I have independently examined the Minutes of the RecruitmentCommittee to ascertain the reason for dispensing with the descriptive test.The Minutes placed before this Court fortify the stand of the Respondents,taken elaborately in the counter-affidavit, that the descriptive test wasdispensed with on account of urgency. Respondents have satisfactorilyexplained that on account of the induction training of Judicial Officers aswell as recruitment of fresh Judicial Officers, both in the DJS and theDHJS, there was an urgent need of ministerial staff in the office of theDistrict & Sessions Judge (HQs), which was otherwise facing severecrunch of the Ministerial staff, it was decided to dispense with the

descriptive test. The process was undoubtedly time consuming andcumbersome and would have prolonged the recruitment. The CompetentAuthority, in its wisdom and discretion, took well considered decision,in the exigency and interest of administration and suffers from noarbitrariness, calling for interference by this Court.

58.It is well settled law that it is the domain of the employer to fixthe criteria of recruitment/selection to the posts that are intended to befilled. As observed by the Supreme Court, it is the employer who is bestsuited to decide the requirements of the post depending on the nature ofwork and also decide the evaluation/selection mechanisms or scheme ofan examination, so as to ensure that the candidates selected meet thethreshold of efficiency required to carry out the job requirement of post.It is neither the domain of the Court to determine the method/criteria ofselection nor does the Court have the necessary expertise to decide whichcriteria would be best suited to the job requirement. Supreme Court andvarious High Courts have repeatedly held that the Courts should notinterfereintheexaminationprocesseswithrespecttorequisitequalifications etc. and, in my view, this restraint and restrictions on theCourts shall apply with greater force to interference in the scheme of theexamination, of course with caveat that the applicable Statutory Rulesare not violated.

59.In this context I may quote two passages from the judgment of theSupreme Court in Ran Vijay Singh vs. State of U.P.,(2018) 2 SCC 357, areading of which shows that Constitutional Courts must exercise restraintin matters relating to examinations. Paras 31 and 32 are as follows:-

"31. On our part we may add that sympathy or compassiondoes not play any role in the matter of directing or not directingre-evaluation of an answer sheet. If an error is committed bythe examination authority, the complete body of candidatessuffers. The entire examination process does not deserve to bederailed only because some candidates are disappointed ordissatisfied or perceive some injustice having been caused tothem by an erroneous question or an erroneous answer. Allcandidates suffer equally, though some might suffer more butthat cannot be helped since mathematical precision is notalways possible. This Court has shown one way out of animpasse -- exclude the suspect or offending question.

32. It is rather unfortunate that despite several decisions of thisCourt, some of which have been discussed above, there isinterference by the courts in the result of examinations. Thisplaces the examination authorities in an unenviable positionwhere they are under scrutiny and not the candidates.Additionally, massive and sometimes prolonged examinationexercise concludes with an air of uncertainty. While there is nodoubt that candidates put in tremendous effort in preparingfor an examination, it must not be forgotten that even theexaminationauthoritiesputinequallygreateffortstosuccessfully conduct an examination. The enormity of the taskmight reveal some lapse at later stage, but the court mustconsider the internal checks and balances put in place by theexamination authorities before interfering with the efforts put inby the candidates who have successfully participated in theexamination and the examination authorities. The presentappeals are classic example of the consequence of suchinterference where there is no finality to the result of theexaminations even after lapse of eight years. Apart from theexamination authorities even the candidates are left wonderingaboutthecertaintyorotherwiseoftheresultoftheexamination-- whether they have passed or not; whether theirresult will be approved or disapproved by the court; whetherthey will get admission in college or university or not; andwhether they will get recruited or not. This unsatisfactorysituation does not work to anybody's advantage and such

stateofuncertaintyresultsinconfusionbeingworseconfounded. The overall and larger impact of all this is thatpublic interest suffers."

60.I also find force in the contention of the Respondents that thecriteria of selection has been uniformly applied to all the candidates and itis not as if descriptive test has been dispensed with only qua thepetitioner. The Supreme Court in Bhupinder Singh Negi and Ors. vs.Airport Authority of India and Anr.,2013 SCC Online Del 4524 has heldthat once the evaluation method is uniformly applied to all candidates, nofault can be found with the selection process.

61.Though subtly, Mr. Garg had also argued that if the Respondentshad not dispensed with the descriptive test of as many as 100 marks, therewere chances that the Petitioner would have found place in the merit list.Suffice would it be to state that selection processes cannot be challengedon mere presumptions and conjectures. In the objective test as well as theinterview, the Petitioner has achieved low scores and is far below the cut-off in the merit list. Therefore, to contend that he would have scored highmarks in the descriptive test is no more than conjecture and thecontention only deserves to be rejected.

62.Learned counsel for the Petitioner had relied on the judgments in K.Manjusree (supra); Maharashtra SRTC (supra)and judgments of thisCourt in Hemani Malhotra (supra) and Ramesh Kumar (supra).In myview, the said judgments do not come to the rescue of the Petitioner asthere is no change in the rules of the game in the midst of the game in thepresent case. The rules of the game were clearly set before the gamestarted by an unambiguous stipulation in the Advertisement that the rules

could be changed at any stage of the game, which is unassailed. Thejudgment in Renu & Ors. (supra)also does not inure to the advantage ofthe Petitioner for the reason that there is no violation of the RecruitmentRules, as held above and holding of the objective test is in conformitywith the provisions of the Recruitment Rules.

63.In so far as Ramjit Singh Kardam (supra)is concerned, in fact, thesaid judgment supports the stand of the Respondents and the view takenabove by this Court. The Supreme Court has categorically dealt with awritten test comprising of Multiple Choice Questions and has held thatthe MCQ test was well thought screening test, easy to conduct and easyto evaluate. I may quote para 55 of the judgment in this regard as under:-

“55. As per advertisement dated 20.07.2006, the Commissionhad published the criteria for selection on 28.12.2006 whichwas implemented also, hence, there was no occasion to give upthe merit selection in midway. Further, when no reasons areforthcoming to support the so called ‘administrative reasons’ inthe decision dated 30.06.2008 which was so stated byChairman for the scrapping the written test, we have to hold thesaid decision arbitrary and without reason. The written testconsisting of 100 objective type of multiple choice questions outof which 60 questions relating to academic knowledge of therespective subjects including skill and method of teachingability and 40 questions relating to general knowledge, generalEnglish and Hindi upto matric standard was well thoughtscreening test, easy to conduct and easy to evaluate. TheCommission being recruiting body abdicated its obligation ofscreening out the best candidates; The competitive examination,are means by which equality of opportunity was to be unitedwith efficiency. By the above method favouritism was to beexcluded and the goal of securing the best man for the job wasto be achieved. We, thus, conclude that decision dated30.06.2008 for not holding the written examination and stepshad published the criteria for selection on 28.12.2006 whichwas implemented also, hence, there was no occasion to give upthe merit selection in midway. Further, when no reasons areforthcoming to support the so called ‘administrative reasons’ inthe decision dated 30.06.2008 which was so stated byChairman for the scrapping the written test, we have to hold thesaid decision arbitrary and without reason. The written testconsisting of 100 objective type of multiple choice questions outof which 60 questions relating to academic knowledge of therespective subjects including skill and method of teachingability and 40 questions relating to general knowledge, generalEnglish and Hindi upto matric standard was well thoughtscreening test, easy to conduct and easy to evaluate. TheCommission being recruiting body abdicated its obligation ofscreening out the best candidates; The competitive examination,are means by which equality of opportunity was to be unitedwith efficiency. By the above method favouritism was to beexcluded and the goal of securing the best man for the job wasto be achieved. We, thus, conclude that decision dated30.06.2008 for not holding the written examination and steps

takenconsequenttheretowereallarbitrarydecisions,unsustainable in law.”

64.The reason why, in the said case, the Supreme Court upheld theorders of the High Court scrapping the examination is not far to seek.Relevant paras are as under:-

“45. The above sequence of events indicates that in accordancewith the “special instruction” extracted above the Commissiondecided the criteria for calling the candidates for the selectionas holding of written examination of 200 marks and interviewfor 25 marks which was the perfect criteria looking to thenumber of the candidates i.e. 20836 who had applied inpursuance of the advertisement for the post of PTI. The criteriawas implemented by holding written test on 21.07.2007 whichwas cancelled due to some complaints. The written test wasagain notified for 20.07.2008 which was withdrawn by noticepublished on 30.06.2008, the earlier criterion was given gobye by another notification dated 11.07.2008. The aboveindicates that the standard on which candidates are to bescreened for selection was downgraded by Chairman of his own.When the number of candidates who applied against certainposts are enormously large, short-listing has always beentreated as an accepted mode to correctly value the work andmerit of the candidate. The Division Bench of the High court onthe alteration of the mode of selection as noticed above hasmade following observation in paragraph 37 of the judgment:

“(37) Thus, even accepting the appellants’ plea that‘selection criteria’ or ‘mode of selection’ can bealtered midstream to short-list the candidates withhigher merit, here is case where the alterationshavebeendesignedwiththesoleobjectofdowngrading and not upgrading the standards ofselection to public employment.

Was the Chairman competent to take policy decisions like‘selection criteria’ or ‘mode of selection’?”

xxx

“57. We having held that change in criteria of selection wasnever notified by the Commission and about the change inprocess of selection candidates were kept in total dark and forthe first time the criteria applied in selection process waspublishedalongwithresultdated10.04.2008,thewritpetitioners cannot be estopped in challenging the arbitrarycriteria so applied. The submission of Shri Sibal cannot beaccepted. The petitioners have never questioned the criteriawhich was published on 28.12.2006 i.e. written test of 200marks and viva voce of 25 marks, merely because theyparticipated in the process of selection after the change ofcriteria, their right to challenge the arbitrary change cannot belost. Estopping the petitioners from challenging the change ofcriteria will be giving seal to arbitrary changes affected byChairman as noted above.

58. In view of the foregoing discussions, we answer point Nos.3,4 and 5 in following manner:—

Ans. 3:

The decisions dated 30.06.2008, 11.07.2008 and 31.07.2008were arbitrary decisions without any reason to change theselection criterion published on 28.12.2006 which have effect ofdowngrading the merit in the selection.

Ans.4:

The Commission being multi-member body, all decisionspertaining to mode of selection and criteria was to be taken bythe Commission itself, there being no rules or resolutiondelegating the said power to Chairman or any other member.

Thedecisionofnotholdingwrittenexaminationdated30.06.2008, decision to screen on the basis of eight times ofvacancies and percentage of marks dated 11.07.2008 anddecision dated 31.07.2008 to call all eligible candidates, wereall decisions taken by the Chairman himself, which decisionscannot be said to be decisions of the Commission.”

65.As far as the reduction in the interview marks is concerned, I findno infirmity with the said decision either. The action has been takenpursuant to recommendations of the Examination Committee of thisCourt that the weightage of the interview should not exceed 15%. Whenthe total marks under the scheme of the examination were 220, whichincluded the objective test of 120 marks and descriptive test of 100 marks,the interview marks were 30 and 35, respectively, with due weightage at15%. However, once the descriptive test was dispensed with, the totalmarks came down to 120 and rightly, the interview marks were scaleddown to 12 to keep the ceiling of 15% intact. The Supreme Court hasheld in several cases that excessive and undue weightage should not begiven to the interview in comparison to written test and, in my opinion,the decision to peg the weightage at 15% is in keeping with the ethos ofthe said line of judgments. However, it has also been held in severaljudgments that allocation of marks for interview will depend on facts ofeach case and this is the prerogative of the Authority conducting theinterview and Courts do not have the expertise to determine the same. Inthis context, I may refer to passage from judgment in Ashok KumarYadav (supra)as under:-

“Glenn Stahl has pointed out in his book on PublicPersonnel Administration that the viva voce test does sufferfromcertaindisadvantagessuchasthedifficultyofdeveloping valid and reliable oral test, the difficulty ofsecuring reviewable record of an oral test and publicsuspicion of the oral test as channel for the exertion ofpolitical influence and, as pointed out by this Court in AjayHasia case [(1981) 1 SCC 722 : 1981 SCC (L&S) 258 : AIR1981 SC 487 : (1981) 2 SCR 79] , also of other corrupt,

nepotistic or extraneous considerations, but despite theseacknowledged disadvantages, the viva voce test has beenused increasingly in the public personnel testing and hasbecome an important instrument whenever tests of personalattributes are considered essential. Glenn Stahl proceeds toadd that “no satisfactory written tests have yet been devisedfor measuring such personnel characteristics as initiative,ingenuity and ability to elicit cooperation, many of whichare of prime importance. When properly employed, the oraltest today deserves place in the battery used by thetechnical examiner”. There can therefore be no doubt thatthe viva voce test performs very useful function inassessing personal characteristics and traits and in fact,tests the man himself and is therefore regarded as animportant tool along with the written examination. Now ifboth written examination and viva voce test are accepted asessential features of proper selection in given case, thequestion may arise as to the weight to be attachedrespectively to them. “In the case of admission to collegefor instance”, as observed by Chinnappa Reddy, J., in LilaDhar case [(1981) 4 SCC 159 : 1981 SCC (L&S) 588 : AIR1981 SC 1777 : (1982) 1 SCR 320] , “where the candidate'spersonality is yet to develop and it is too early to identify thepersonal qualities for which greater importance may have tobe attached in later life, greater weight has perforce to begiven to performance in the written examination” and theimportance to be attached to the viva voce test in such acase would therefore necessarily be minimal. It was for thisreason that in Ajay Hasia case [(1981) 1 SCC 722 : 1981SCC (L&S) 258 : AIR 1981 SC 487 : (1981) 2 SCR 79] thisCourt took the view that the allocation of as high apercentage of marks as 33.3 per cent to the viva voce testwas “beyond all reasonable proportion and rendered theselection of the candidates arbitrary”. But, as pointed out byChinnappa Reddy, J., “in the case of services to whichrecruitment has necessarily to be made from persons ofmature personality, interview test may be the only waysubject to basic and essential academic and professional

requirements being satisfied”. There may also be services“to which recruitment is made from younger candidateswhose personalities are on the threshold of development andwho show signs of great promise” and in case of suchservices where sound selection must combine academicability with personality promise, some weight has to begiven to the viva voce test. There cannot be any hard andfast rule regarding the precise weight to be given to the vivavoce test as against the written examination. It must varyfrom service to service according to the requirement of theservice, the minimum qualification prescribed, the agegroup from which the selection is to be made, the body towhich the task of holding the viva voce test is proposed to beentrusted and host of other factors. It is essentially amatter for determination by experts. The Court does notpossess the necessary equipment and it would not be rightfor the Court to pronounce upon it, unless to use the wordsof Chinnappa Reddy, J., in Lila Dhar case [(1981) 4 SCC159 : 1981 SCC (L&S) 588 : AIR 1981 SC 1777 : (1982) 1SCR 320] “exaggerated weight has been given with provenor obvious oblique motives”.66.For all the aforesaid reasons, this Court finds no ground to interferein the process of recruitment which is at the fag end of medicalexaminations/antecedent verifications of the candidates selected on merit.There is no merit in the petitions and the same are accordingly dismissed,along with the pending applications.

APRIL 20, 2021yo

JYOTI SINGH, J