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TMI Blog2006 (10) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... ritten examination. The Rules enabled the Commission to do so. Such a written examination in fact was held. However, the same was held only for the purpose of short-listing the candidates and not for any other purpose. It was not a fair exercise of power. The marks obtained by the candidates in the said written examination should have been taken into consideration. Evidently, the Commission did not do so. For the reasons stated hereinbefore, we would direct the State of Madhya Pradesh therefor to consider the desirability of amending the Rules suitably so that such charges of favoritism or nepotism by the members of the constitutional authority in future is not called in question. We would, at the cost of repetition, would state that although for one reason or the other, the High Court had not addressed itself on this question, but, the very fact that such allegations had been made is a sufficient ground for the State or the Commission to take appropriate steps for amending the Rules for the said purpose. In the instant case, however, as all the selected candidates were not impleaded as parties in the writ petition, no relief can be granted to the appellant. The appeal is dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; "8. Conditions of eligibility of direct recruits.- In order to be eligible for direct recruitment to the Service a candidate must satisfy the following conditions, namely:- (i) (ii) A candidate who is a retrenched Government or University employee shall be allowed to deduct from his age the period of all temporary service previously rendered by him upto a maximum limit of 7 years even if it represents more than one spell provided that the resultant age does not exceed the upper age limit by more than three years." Rule 11 provides for mode of direct recruitment. Rule 12 of the Rules is as under : "12. List of candidates recommended by the Commission.- (1) The Commission shall forward to the Kuladhipati a list arranged in order of merit of the suitable candidates who have qualified by such standards as the Commission may determine and of the candidates belonging to the Scheduled Castes and Scheduled Tribes who, though not quali by that standard, are declared by the Commission to be suitable for appointment to the Service with due regard to the maintenance of efficiency of administration. The list shall be published for general information. (2) Subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n selected in the interviews, could not question the selection process. Mr. S.B. Sanyal, the learned Senior Counsel appearing on behalf of the appellant, inter alia, submitted : i) 1982 Rules were ultra vires as no selection could be made only on the basis of interview ignoring the marks obtained in the written examination and/or academic qualification and experience; ii) Selection entirely on viva voce tests may be permissible in respect of the post which requires professional experience and not for the teachers of the Universities wherefor academic qualification as also the experience are relevant factors. Strong reliance, in this behalf, has been placed on Ajay Hasia vs. Khalid Mujib Sehravardi [(1981) 1 SCC 722] and Ashok Kumar Yadav & Ors. etc. vs. State of Haryana & Ors. etc. [(1985) 4 SCC 417]; and iii) Having regard to the academic qualification and experience held by Appellant, she had a legitimate expectation of being appointed. Mr. S.K. Gambhir, the learned Senior Counsel appearing on behalf of the Madhya Pradesh Service Commission, on the other hand, contended that- i) As the viva voce test was the only criteria fixed for selection of Assistant Registrar in te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be joined individually as respondents. The matter, therefore, came to be decided in their absence. A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh's writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non-joinder of necessary parties." {See also All India SC & ST Employees Assn. & Anr. etc. vs. A. Arthur Jeen & Ors. etc. [(2001) 6 SCC 380] and Indu Shekhar Singh & Ors. vs. State of U.P. & Ors. [2006 (5) SCALE 107].} Furthermore, the validity of 1982 Rules was not in question in the writ petition. What was in question was only the selection process. In the absence of any prayer made in the writ petition in that behalf and/or grounds for such a declaration having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "......Now there can be no doubt that, having regard to the drawbacks and deficiencies in the oral interview test and the conditions prevailing in the country, particularly when there is deterioration in moral values and corruption and nepotism are very much on the increase, allocation of a high percentage of marks for the oral interview as compared to the marks allocated for the written test, cannot be accepted by the Court as free from the vice of arbitrariness. It may be pointed out that even in Peeriakaruppan's case (supra), where 75 marks out of a total of 275 marks were allocated for the oral interview, this Court observed that the marks allocated for interview were on the highside. This Court also observed in Miss Nishi Maghu case (1980) 4 SCC 95 : "Reserving 50 marks for interview out of a total of 150...does seem excessive, especially when the time spent was not more than 4 minutes on each candidate". There can be no doubt that allocating 33 1/3 per cent of the total marks for oral interview is plainly arbitrary and unreasonable. It is significant to note that even for selection of candidates for the Indian Administrative Service, the Indian Foreign Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19 provided guidance for the Commission in preparing the list of approved candidates on the basis of the aggregate marks obtained by a candidate in the written as well as in viva voce test. Clause (2) of the proviso to Rule 19 did not no doubt expressly lay down that the minimum marks for the viva voce had to be prescribed but the language used therein clearly showed that the Commission alone had the power to prescribe minimum marks in viva voce test for judging the suitability of a candidate for the service. ....... The viva voce test is a well recognised method of judging the suitability of a candidate for appointment to public services and this method had almost universally been followed in making selection for appointment to public services. Where selection is made on the basis of written as well as viva voce test, the final result is determined on the basis of the aggregate marks. If any minimum marks either in the written test or in viva voce test are fixed to determine the suitability of a candidate the same has to be respected." {See also Jaswinder Singh & Ors. vs. tate of Jammu & Kashmir & Ors. [(2003) 2 SCC 132], Vijay Syal & Anr. vs. State of Punjab & Ors. [(2003) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ady taken the view that we do not consider it just and proper to set aside the selections already made. In these circumstances even if we were inclined to give direction to the Board to create three more posts and give chance to all the candidates securing equal or higher marks in the written examination than the writ petitioners, there was a remote chance of the writ petitioners being selected. In our view such exercise would be in futility, taking in view the chance of success of the writ petitioners. In the result, we allow these appeals in part and quash the rule made by the U.P. State Electricity Board keeping 40 marks for interview and 40 marks for group discussion being arbitrary. We direct that in future the marks for interview and group discussion shall not be kept exceeding 10 per cent and 5 per cent of the total marks, respectively. The selection already made by the Board for the posts of Assistant Engineers (Civil) shall not be disturbed." (Emphasis supplied) It is unfortunate that the respective State Governments had not noticed the decisions of this Court. A statutory rule, it is trite, must not only be, in consonance with the legislative intent, but also must s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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