November 7, 2024
Administrative lawDU LLBSemester 4

Ashok Kumar Yadav v. State of Haryana(1985) 4 SCC 417 : AIR 1987 SC 454[Rule against bias – doctrine of necessity]

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Full Case Details

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 each year in or around
the month of January for the purpose of selection by competition of as many candidates for
the Haryana Civil Service (Executive) and other Allied Services as the Governor of Haryana
may determine and 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. 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-servicemen shall not be required to appear in the optional subjects.
The compulsory subjects included English Essay, Hindi, Hindi Essay and General Knowledge
carrying the aggregate of 400 marks and there was also viva voce examination which was
compulsory and which carried 200 marks and each optional subject carried 100 marks. 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. Regulation 3 read as follows:
“3. No candidate shall be eligible to appear in the viva voce test unless he
obtains 45% marks in the aggregate of all subjects including at least 33% 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% marks
in the aggregate, the Commission may at their discretion lower this percentage to not
below than 40% for the language papers remaining unchanged.”
In response to the advertisement issued by the Haryana Public Service Commission,
about 6000 candidates applied for recruitment and appeared for the written examination held
by the Haryana Public Service Commission. Out of 6000 candidates who appeared for the
written examination, over 1300 obtained more than 45% marks and thus qualified for being
called 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 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 as viva
voce test, 119 candidates were selected and recommended by the Haryana Public Service
Commission to the State Government. 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
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consequently not selected. They were aggrieved by the selections made by the Commission
and three out of them filed Civil Writ 2495 of 1983 in the High Court of Punjab and Haryana
challenging the validity of the selections and seeking a 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 in the
written examination and they contended that if this was done, they would have been 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 Petitions
challenging the validity of the selections on substantially the same grounds and claiming
substantially the same relief as the petitioners in Civil Writ Petition 2495 of 1983. The State
of Haryana was joined as Respondent 1, the Haryana Public Service Commission as
Respondent 2 and three out of the five members of the Haryana Public Service Commission,
as Respondents 3 to 5 in the writ petitions. The Chairman and one other member of the
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 joined as respondents.
P.N. BHAGWATI, J. – 4. 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. 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 petitioners, vitiated the entire selection process.

  1. It was also urged on behalf of the respondents that the Haryana Public Service
    Commission being 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.
  2. This takes us to the next ground of attack which found favour with the Division
    Bench of the High Court, namely that the participation of Shri R.C. Marya and Shri Raghubar
    Dayal Gaur 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, that when the close relatives of Shri
    R.C. Marya and Shri Raghubar Dayal Gaur came up for interview (sic), 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
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    that Trilok Nath Sharma, who was the son-in-law of the sister of Shri Raghubar Dayal Gaur
    obtained 160 marks out of 200 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 admitted facts are obviously tell-tale”.
    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 Commission 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
    Daya1 Gaur 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 merit, but as an act of nepotism with
    a view to unduly favouring them so that they can come 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 as to what is the basis on which the Division Bench could observe
    that these three candidates got high marks at the viva voce examination only because they
    were related to Shri R.C. Marya and Shri Raghubar Dayal Gaur. Can a relative of a member
    of a Public Service Commission, Central or State, not get high marks at the viva voce
    examination on his own merit? Must he always get low marks, so that if high marks are
    awarded to him, that would necessarily be attributed to his relationship with the member of
    the Public Service Commission?
  3. The Division Bench sought to draw support for its inference from an article written by
    Shri D.R. Chaudhary, a member of the Haryana Public Service Commission, who is arrayed
    as Respondent 3 in the writ petition. This article was captioned “Public Service Commissions
    under Pressures” and was written by Shri D.R. Chaudhary and published in the issue of
    Tribune dated March 13, 1981. Shri D.R. Chaudhary was appointed a member of the Haryana
    Public Service Commission on December 2, 1977. He had been such member for over three
    years at the time of writing this article.
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  4. He pointed out in this article, and we are quoting here a passage which has been
    strongly relied upon by the Division Bench:
    “With political morality in our system at its lowest ebb, the politicians are always
    in a hurry to pack the P.S.Cs. with such persons who would be pliable tools in the
    matter of recruitment. Academic worth, intellectual calibre, experience of men and
    matters, and integrity are of no relevance. What is important is a person’s
    ‘dependability’.
    Narrow caste, communal and regional issues dominate Indian politics today and
    these considerations override questions of talent in the matter of recruitment. In the
    process a member with little intellectual calibre and less integrity begins to serve his
    own interests and those of his political benefactor. No wonder there is a widespread
    feeling in the States (mercifully, with the U.P.S.C. as a possible exception) that every
    post carries a price tag.
    We have reached a state when the composition and functioning of our P.S.Cs.
    should be critically evaluated. This is necessary if the institution has to survive as a
    meaningful body. Its functioning should be brought under public gaze. At present
    there is a halo of secrecy surrounding the P.S.C. and secrecy always breeds
    corruption. It would be suicidal to treat the P.S.C. as a sacred cow. There is nothing
    more sacred than the public interest and the public interest demands that the
    functioning of the P.S.Cs. should be widely debated through the press and other
    forums I invite my colleagues of the P.S.Cs. and public spirited individuals to join
    the debate.”
    We may reasonably assume that a person who wrote such an article would never be a
    party to any manipulation in the selection of candidates nor would he debase or demean
    himself by indulging in or even lending his support to, any acts of nepotism or favouritism. It
    would be quite legitimate to infer that if there had been any attempt to manipulate the marks
    at the viva voce examination with a view to favouring the undeserving or pushing down the
    meritorious, Shri D.R. Chaudhary would have protested against such improper and unholy
    attempt. The very fact that Shri D.R. Chaudhary not only did not register any dissent in regard
    to the marks awarded at the viva voce examination but actually agreed with the evaluation
    made by his colleagues shows that there was nothing wrong with the marking nor there was
    any manipulation of marks indicating nepotism or favouritism. In fact Shri D.R. Chaudhary
    filed an affidavit in these proceedings where he candidly said that this article written by him
    was based on his direct experience of working in the Haryana Public Service Commission and
    he proceeded to add boldly and courageously:
    “As a member of H.P.S.C., I noticed various forces trying to undermine the
    independent functioning of the Commission. What irked me the most was the
    political interference. An attempt was made to convert this august body into a petty
    government department where politicians’ writ could run large. Besides this, caste
    lobbies and money-bags were active to influence its decisions at every stage.
    I was in a state of agony. I decided to take the matter to the public through the
    medium of the press. I knew that I would incur the wrath of the powers and dismay
    caste lobbies and money-bags.
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    I took a calculated risk and wrote the article under question. It did infuriate the
    political bosses as is evident from a news item published in the Tribune dated June
    25, 1981 (clipping attached). But at the same time it served the purpose I had in
    mind. It started a public debate. It created a furor. It was read and debated widely. A
    number of letters to the Editor appeared in the Tribune. It also figured in the session
    of the Haryana Vidhan Sabha.
    The article had a desired effect. Pressures ceased. Political operators and other
    manipulators were put on the alert. As such I did not feel the necessity of writing
    again on the same issue though I continued writing on other matters.”
    Then speaking specifically about the viva voce examination held by the Haryana Public
    Service Commission in the present case, Shri D.R. Chaudhary stated:
    “The interviews for the recruitment of H.C.S. and Allied Services, which is the
    subject of writ petitions in the Hon’ble Punjab and Haryana High Court, were
    conducted about two years after the publication of the article. No pressure, political
    or otherwise, was exercised on me, nor to the best of my knowledge, on any other
    colleague of mine in the Commission during the course of this recruitment.”
  5. There is no reason as to why this statement made by Shri D.R. Chaudhary should not
    be believed. It is indeed surprising that the Division Bench accepted readily what was said by
    Shri D.R. Chaudhary in the article written by him on March 13, 1981 but for some
    inexplicable reason, refused to believe the same Shri D.R. Chaudhary when he stated that this
    article had the desired effect and on account of the exposure made in this article, pressures,
    political or otherwise, ceased so far as the functioning of the Haryana Public Service
    Commission was concerned and in the awarding of marks at the viva voce examination, no
    pressure, political or otherwise, was exercised on Shri D.R. Chaudhary nor to the best of his
    knowledge, on any of his other colleagues. We accept what has been stated by Shri D.R.
    Chaudhary in his affidavit and disapprove the observation 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. We
    are of the view that there was no material whatsoever on record to justify such observation on
    the part of the Division Bench. In fact, far from there being any material supportive of such
    observation, we find that there is one circumstance, which, in our opinion, 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.
  6. But the question still remains whether the selections made by the Haryana Public
    Service Commission could be said to be vitiated on account of the fact that Shri R.C. Marya
    and Shri Raghubar Dayal Gaur participated in the selection process, though Trilok Nath
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    Sharma who was related to Shri Raghubar Dayal Gaur and Shakuntala Rani and Balbir Singh
    both of whom were related to Shri R.C. Marya, were candidates for selection. It is
    undoubtedly true that Shri Raghubar Dayal Gaur did not participate when Trilok Nath Sharma
    came up for interview and similarly Shri R.C. Marya did not participate when Shakuntala
    Rani and Balbir Singh appeared for interview at the viva voce examination. But, according to
    the petitioners, this was not sufficient to wipe out the blemish in the process of selection for
    two reasons: firstly, because Shri R.C. Marya and Shri Raghubar Dayal Gaur participated in
    the interviews of the other candidates and that gave rise to a reasonable apprehension in the
    mind of the candidates that Shri R.C. Marya and Shri Raghubar Dayal Gaur might tend to
    depress the marks of the other candidates with a view to ensuring the selection of the
    candidates related to them and secondly, because there could be reasonable apprehension in
    the mind of the candidates that the other members of the Haryana Public Service Commission
    interviewing the candidates might, out of regard for their colleagues, tend to give higher
    marks to the candidates related to them. The argument of the petitioners was that the presence
    of Shri R.C. Marya and Shri Raghubar Dayal Gaur on the interviewing committee gave rise to
    an impression that there was reasonable likelihood of bias in favour of the three candidates
    related to Shri R.C. Marya and Shri Raghubar Dayal Gaur and this had the effect of vitiating
    the entire selection process.
  7. We agree with the petitioners that it is one of the fundamental principles of our
    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 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 this Court. It is also important to note that
    this rule is not confined to cases where judicial power strict sense 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. This was the basis on which the applicability of this rule was extended to the
    decision-making process of a selection committee constituted for selecting officers to the
    Indian Forest Service in A.K. Kraipak. This Court emphasized that it was not necessary to
    establish bias but it was sufficient to invalidate the selection process if it could be shown that
    there was reasonable likelihood of bias. The likelihood of bias may arise on account of
    proprietary interest or on account of personal reasons, such as, hostility to one party or
    personal friendship or family relationship with the other. Where reasonable likelihood of bias
    is alleged on the ground of relationship, the question would always be as to how close be the
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    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.
  8. We must straightaway point out that A.K. Kaipak case is a landmark in the
    development of administrative law and it has contributed in a large measure to the
    strengthening of the rule of law in this country. We would not like to whittle down in the
    slightest measure the vital principle laid down in this decision which has nourished the roots
    of the rule of law and injected justice and fair play into legality. There can be no doubt that if
    a Selection Committee is constituted for the purpose of selecting candidates on merits and one
    of the members of the Selection Committee is closely related to a candidate appearing for the
    selection, it would not be enough for such member merely to withdraw from participation in
    the interview of the candidate related to him but he must withdraw altogether from the entire
    selection process and ask the authorities to nominate another person in his place on the
    Selection Committee, because otherwise all the selections made would be vitiated on account
    of reasonable likelihood of bias affecting the process of selection. But the situation here is a
    little different because the selection of candidates to the Haryana Civil Service (Executive)
    and Allied Services is being made not by any Selection Committee constituted for that
    purpose but it is being done by the Haryana Public Service Commission which is a
    Commission set up under Article 316 of the Constitution. It is a Commission which consists
    of a Chairman and a specified number of members and is a constitutional authority. We do
    not think that 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 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
    were 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 or
    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, we must
    make it 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. Here in the present case it was common ground between the parties that Shri Raghubar
    Dayal Gaur did not participate at all in interviewing Trilok Nath Sharma and likewise Shri
    R.C. Marya did not participate at all when Shakuntala Rani and Balbir Singh came to be
    interviewed and in fact, both of them retired from the room when the interviews of their
    respective relatives were held. Moreover, neither of them took any part in any discussion with
    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. We are
    therefore of the view that there was no infirmity attaching to the selections made by the
    Haryana Public Service Commission on the ground that, though their close relatives were
    appearing for the interview, Shri Raghubar Dayal Gaur and Shri R.C. Marya did not withdraw
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    completely from the entire selection process. This ground urged on behalf of the petitioners
    must therefore be rejected.
  9. There was also one other contention which found favour with the Division Bench in
    support of its conclusion that there was reasonable likelihood of bias vitiating the “whole
    gamut of the selection process”. This contention was based on the fact that though only 61
    vacant posts were advertised for being filled up, over 1300 candidates representing more than
    20 times the number of available vacancies, were called for the viva voce examination. The
    Division Bench pointed out that in order to have a proper balance between the objective
    assessment of a written examination and the subjective assessment of personality by a viva
    voce test, the candidates to be called for interview at the viva voce test should not exceed
    twice or at the highest, thrice the number of available vacancies. This practice of confining
    the number of candidates to be called for interview to twice or at the highest, thrice the
    number of vacancies to be filled up, was being followed consistently by the Union Public
    Service Commission in case of Civil Services Examination, but in the present case, as
    observed by the Division Bench, a departure was made by the Haryana Public Service
    Commission and candidates numbering more than 20 times the available vacancies were
    called for’ interview. The result, according to the Division Bench, was that the area of
    arbitrariness in the viva voce test was considerably enlarged and even a student who had got
    poor marks in the written examination and who having regard to dismal performance at the
    written examination did not deserve to be called for interview, could get a chance of being
    called and he could then be pulled up within the range of selection by awarding unduly high
    marks at the viva voce examination. This conclusion was sought to be buttressed by the
    Division Bench by relying on a comparison of the marks obtained by some of the petitioners
    in the written examination and at the viva voce test. This comparison showed that eight of the
    petitioners secured “a percentage of around 60% rising up to a highest of 68.5%” in the
    written examination, but they were awarded “a disastrously low percentage of marks in the
    viva voce ranging from the rock bottom of 13% to 21%”, making it impossible for them to
    bridge the difference so as to be able to come within the range of selection. How could such
    brilliant candidates who had done so well in the written examination fare so poorly in the viva
    voce test that they could not get more than 20% marks, asked the Division Bench? The
    Division Bench also pointed out that some out of these eight petitioners had appeared in an
    earlier examination held in 1977-78 and at the viva voce test held at that time, they had
    secured more than 50 to 55% marks and it was difficult to believe that during the next three
    succeeding years, they had deteriorated to such an extent that they slumped down to 20%
    marks. The Division Bench also analysed the comparative marks obtained by the first 16
    candidates who topped the list in the written examination and noted that on account of the
    poor marks obtained by them at the viva voce test, 10 out of these 16 candidates were
    “knocked out of the race” because their ranking, on the basis of the total marks obtained by
    them in the written examination and the viva voce test, went far below 61 and only 4 out of
    the remaining 6 could rank within the first 16 so as to be eligible for appointment in the
    Haryana Civil Service (Executive Branch) which is a superior service compared to other
    allied services. It was also pointed out by the Division Bench that out of 16 candidates who
    topped the list on the basis of combined marks obtained in the written and viva voce
    examinations and who consequently secured appointment to posts in the Haryana Civil
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    Service (Executive Branch), 12 could make it only on account of the high marks obtained by
    them at the viva voce examination, though they were not high up in ranking in the written
    examination. On the basis of these facts and circumstances, the Division Bench concluded
    that the petitioners had discharged the burden of showing that there was reasonable likelihood
    of bias vitiating the entire selection process.
  10. We do not think we can agree with this conclusion reached by the Division Bench.
    But whilst disagreeing with the conclusion, we must admit that the Haryana Public Service
    Commission was not right in calling for interview all the 1300 and odd candidates who
    secured 45% or more marks in the written examination. The respondents sought to justify the
    action of the Haryana Public Service Commission by relying on Regulation 3 of the
    Regulations contained in Appendix 1 of the Punjab Civil Service (Executive Branch) Rules,
    1930 which were applicable in the State of Haryana and contended that on a true
    interpretation of that Regulation, the Haryana Public Service Commission was bound to call
    for interview all the candidates who secured a minimum of 45% marks in the aggregate at the
    written examination. We do not think this contention is well founded. A plain reading of
    Regulation 3 will show that it is wholly unjustified. We have already referred to Regulation 3
    in an earlier part of the judgment and we need not reproduce it again. 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% marks in the aggregate in the written examination.
    But obtaining of minimum 45% marks does not by itself entitles 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 the candidates who satisfy the minimum
    eligibility requirement. It is open to the Haryana Public Service Commission to say that out of
    the candidates who satisfy the eligibility criterion of minimum 45% marks in the written
    examination, only a limited number of candidates at the top of the list shall be called for
    interview. And this has necessarily to be done because otherwise the viva voce test would be
    reduced to a farce. It is indeed difficult to see how a viva voce test for properly and
    satisfactorily measuring the personality of a candidate can be carried out, if over 1300
    candidates are to be interviewed for recruitment to a service. If a viva voce test is to be carried
    out in a thorough and scientific manner, as it must be in order to arrive at a fair and
    satisfactory evaluation of the personality of a candidate, the interview must take anything
    between 10 to 30 minutes. In fact, Herman Finer in his book on Theory and Practice of
    Modern Government points out that “the interview should last at least half an hour”. The
    Union Public Service Commission making selections for the Indian Administrative Service
    also interviews a candidate for almost half an hour. Only 11 to 12 candidates are called for
    interview in a day of 5½ hours. It is obvious that in the circumstances, it would be impossible
    to carry out a satisfactory viva voce test if such a large unmanageable number of over 1300
    candidates are to be interviewed. The interviews would then tend to be casual, superficial and
    sloppy and the assessment made at such interviews would not correctly reflect the true
    measure of the personality of the candidate. Moreover, such a course would widen the area of
    arbitrariness, for even a candidate who is very much lower down in the list on the basis of
    marks obtained in the written examination, can, borrow an expression used by the Division
    Bench, ‘gatecrash’ into the range of selection, if he is awarded unduly high marks at the viva
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    voce examination. It has therefore always been the practice of the Union Public Service
    Commission to call for interview, candidates representing not more than twice or thrice the
    number of available vacancies. Kothari Committee’s Report on the “Recruitment Policy and
    Selection Methods for the Civil Services Examination” also points out, after an in-depth
    examination of the question as to what should be the number of candidates to be called for
    interview:
    “The number of candidates to be called for interview, in order of the total marks
    in written papers, should not exceed, we think, twice the number of vacancies to be
    filled….”
    Otherwise the written examination which is definitely more objective in its assessment
    than the viva voce test will lose all meaning and credibility and the viva voce test which is to
    some extent subjective and discretionary in its evaluation will become the decisive factor in
    the process of selection. We are therefore of the view that 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. The Haryana Public
    Service Commission in the present case called for interview all candidates numbering over
    1300 who satisfied the minimum eligibility requirement by securing a minimum of 45%
    marks in the written examination and this was certainly not right, but we may point out that in
    doing so, the Haryana Public Service Commission could not be said to be actuated by any
    mala fide or oblique motive, 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. The only
    question is whether this had any invalidating effect on the selections made by the Haryana
    Public Service Commission.
  11. We do not think that the selections made by the Haryana Public Service Commission
    could 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 on the view taken by us that was not the right course to follow and not more than
    twice or at the highest thrice, the number of candidates should have been called for interview.
    Something more than merely calling an unduly large number of candidates for interview must
    be shown in order to invalidate the selections made. That is why the Division Bench relied on
    the comparative figures of marks obtained in the written examination and at the viva voce test
    by the petitioners, the first 16 candidates who topped the list in the written examination and
    the first 16 candidates who topped the list on the basis of the combined marks obtained in the
    written examination and the viva voce test, and observed that these figures showed that there
    was reasonable likelihood of arbitrariness and bias having operated in the marking at the viva
    voce test. Now it is true that some of the petitioners did quite well in the written examination
    but fared 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.
    Equally it is true that out of the first 16 candidates who topped the list in the written
    examination, 10 secured poor rating in the viva voce test and were knocked out of the
    reckoning while 2 also got low marks in the viva voce test but just managed to scrape through
    181
    to come within the range of selection. It is also true that out of the first 16 candidates who
    topped the list on the basis of the combined marks obtained in the written examination and the
    viva voce test, 12 could come in the list only on account of high marks obtained by them at
    the viva voce test, though the marks obtained by them in the written examination were not of
    sufficiently high order. These figures relied upon by the Division Bench may create a
    suspicion in one’s mind that some element of arbitrariness might have entered the assessment
    in the viva voce examination. But suspicion cannot take the place of proof and we cannot
    strike down the selections made on the ground that the evaluation of the merits of the
    candidates in the viva voce examination might be arbitrary. It is necessary to point out that 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. Moreover,
    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 Chairman 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. We do not think that the Division Bench was 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.
  12. That takes us to the next ground of challenge which found acceptance with the
    Division Bench. The contention of the petitioners under this ground of challenge was that in
    comparison to the marks allocated to the written examination, the proportion of the marks
    allocated to the viva voce test was excessively high and that introduced an irredeemable
    element of arbitrariness in the selection process so as to offend Articles 14 and 16 of the
    Constitution. It is necessary in order to appreciate this contention and to adjudicate upon its
    validity to consider the relative weight attached by the relevant rules to the written
    examination and the viva voce test. We have already referred to the Punjab Civil Service
    (Executive Branch) Rules, 1930 as applicable in the State of Haryana. Rule 9 of these rules
    prescribes that a competitive examination shall be held in accordance with the Regulations set
    out in Appendix 1 for the purpose of selection by competition of candidates to the Haryana
    Civil Service (Executive Branch) and other Allied Services and under Regulations 1 and 5
    every ex-service officer has to appear in a written examination in 5 compulsory subjects
    carrying the aggregate of 400 marks and a viva voce test carrying 200 marks and likewise,
    every candidate belonging to the general category has to appear in a written examination in 8
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    subjects carrying the aggregate of 700 marks and for him also there is a viva voce test
    carrying 200 marks. The argument of the petitioners was that in case of ex-service officers the
    marks allocated for the viva voce test were 200 as against 400 allocated for the written
    examination so that the marks allocated for the viva voce test came to 33.3% of the total
    number of marks taken into account for the purpose of making selection. So also in the case
    of candidates belonging to the general category, the marks allocated for the viva voce test
    were 200 as against 700 allocated for the written examination with the result that the marks
    allocated for the viva voce test came to 22.2% of the total number of marks for the
    competitive examination. This percentage of 33.3% in the case of ex-service officers and
    22.2% in the case of other candidates was, according to the Division Bench, unduly high and
    rendered the selection of the candidates arbitrary. The correctness of this view has been
    challenged before us on behalf of the respondents.
  13. It is now admitted on all hands that 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 viva voce test, much depending on the constitution of the interview board.
  14. We may now, in the background of this discussion, proceed to consider whether the
    allocation of as high a percentage of marks as 33.3% in case of ex-service officers and 22.2%
    in case of other candidates, for the viva voce test renders the selection process arbitrary. So
    far as ex-service officers are concerned, there can be no doubt that the percentage of marks
    allocated for the viva voce test in their case is unduly high and it does suffer from the vice of
    arbitrariness. It has been pointed out by the Division Bench in a fairly elaborate discussion
    that so far as the present selections in the category of ex-service officers are concerned, the
    spread of marks in the viva voce test was inordinately high compared to the spread of marks
    in the written examination. The minimum marks required to be obtained in the written
    examination for eligibility for the viva voce test are 180 and as against these minimum 180
    marks, the highest marks obtained in the written examination in the category of ex-service
    officers were 270, the spread of marks in the written examination thus being only 90 marks
    which works out to a ratio of 22.2%. But when we turn to the marks obtained in the viva voce
    test, we find that in case of ex-service officers the lowest marks obtained were 20 while the
    highest marks secured were 171 and the spread of marks in the viva voce test was thus as
    wide as 151 in a total of 200 marks, which worked out to an inordinately high percentage of
  15. The spread of marks in the viva voce test being enormously large compared to the spread
    of marks in the written examination, the viva voce test tended to become a determining factor
    in the selection process, because even if a candidate secured the highest marks in the written
    examination, he could be easily knocked out of the race by awarding him the lowest marks in
    the viva voce test and correspondingly, a candidate who obtained the lowest marks in the
    written examination could be raised to the top most position in the merit list by an
    183
    inordinately high marking in the viva voce test. It is therefore obvious that the allocation of
    such a high percentage of marks as 33.3% opens the door wide for arbitrariness and in order
    to diminish, if not eliminate, the risk of arbitrariness, the percentage needs to be reduced. But
    while considering what percentage of marks may legitimately be allocated for the viva voce
    test without incurring the reproach of arbitrariness, it must be remembered that ex-service
    officers would ordinarily be middle-aged persons of mature personality and it would be hard
    on them at that age to go through a long written examination involving 8 subjects and hence it
    would not be unfair to require them to go through a shorter written examination in only 5
    subjects and submit to a viva voce test carrying a higher percentage of marks than what might
    be prescribed in case of younger candidates. The personalities of these ex-service officers
    being fully mature and developed, it would not be difficult to arrive at a fair assessment of
    their merits on the basis of searching and incisive viva voce test and therefore in their case,
    the viva voce test may be accorded relatively greater weight. But in any event the marks
    allocated for the viva voce test cannot be as high as 33.3%.
  16. The position is no different when we examine the question in regard to the percentage
    of marks allocated for the viva voce test in case of persons belonging to the general category.
    The percentage in the case of these candidates is less than that in the case of ex-service
    officers, but even so it is quite high at the figure of 22.2%. Here also it has been pointed out
    by the Division Bench by giving facts and figures as to how in the case of present selections
    from the general category the spread of marks in the viva voce test was inordinately high
    compared to the spread of marks in the written examination so that a candidate receiving low
    marks in the written examination could be pulled up to a high position in the merit list by
    inordinately high marking in the viva voce test. The viva voce test in the general category,
    too, would consequently tend to become a determining factor in the process of selection,
    tilting the scales in favour of one candidate or the other according to the marks awarded to
    him in the viva voce test. This is amply borne out by the observations of the Kothari
    Committee in the Report made by it in regard to the selections to the Indian Administrative
    Service and other Allied Services. The competitive examination in the Indian Administrative
    Service and other Allied Services also consists of a written examination followed by a viva
    voce test. Earlier in 1948 the percentage of marks allocated for the viva voce test was 22 and
    it was marginally brought down to 21.60 in 1951 and then again in 1964, it was scaled down
    to 17.11. The Kothari Committee in its Report made in 1976 pleaded for further reduction of
    the percentage of marks allocated for the viva voce test and strongly recommended that the
    viva voce test should carry only 300 out of a total of 3000 marks. The Kothari Committee
    pointed out that even where the percentage of marks allocated for the viva voce test was
    17.11, nearly one-fourth of the candidates selected owed their success to the marks obtained
    by them at the viva voce test. This proportion was regarded by the Kothari Committee as
    “somewhat on the high side”. It is significant to note that consequent upon the Kothari
    Committee Report, the percentage of marks allocated for the viva voce test in the competitive
    examination for the Indian Administrative Service and other Allied Services was brought
    down still further to 12.2. The result is that since the last few years, even for selection of
    candidates in the Indian Administrative Service and other Allied Services where the
    personality of the candidate and his personal characteristics and traits are extremely relevant
    for the purpose of selection, the marks allocated for the viva voce test constitute only 12.2%
    184
    of the total marks. Now if it was found in the case of selections to the Indian Administrative
    Service and other Allied Services that the allocation of even 17.11% marks for the viva voce
    test was on the higher side and it was responsible for nearly one-fourth of the selected
    candidates securing a place in the select list owing to the marks obtained by them at the viva
    voce test, the allocation of 22.2% marks for the viva voce test would certainly be likely to
    create a wider scope for arbitrariness. When the Kothari Committee, admittedly an Expert
    Committee, constituted for the purpose of examining recruitment policy and selection
    methods for the Indian Administrative Service and other Allied Services took the view that
    the allocation of 17.11% marks for the viva voce test was on the higher side and required to
    be reduced, it would be legitimate to hold that in case of selections to the Haryana Civil
    Services (Executive Branch) and other Allied Services, which are services of similar nature in
    the State, the allocation of 22.2% marks for the viva voce test was unreasonable. We must
    therefore regard the allocation of 22.2% of the total marks for the viva voce test as infecting
    the selection process with the vice of arbitrariness.
  17. But the question which then arises for consideration is as to what is the effect of
    allocation of such a high percentage of marks for the viva voce test, both in case of ex-service
    officers and in case of other candidates, on the selections made by the Haryana Public Service
    Commission. Though we have taken the view that the percentage of marks allocated for the
    viva voce test in both these cases is excessive, we do not think we would be justified in the
    exercise of our discretion in setting aside the selections made by the Haryana Public Service
    Commission after the lapse of almost two years. 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. We do not therefore 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.
  18. Now if the allocation of such a high percentage of marks as 33.3 in case of ex-service
    officers and 22.2 in case of other candidates, for the viva voce test is excessive, as held by us,
    what should be the proper percentage of marks to be allocated for the viva voce test in both
    these cases. So far as candidates in the general category are concerned we think that 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 Services 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. We would therefore direct
    that hereafter in case of selections to be made to the Haryana Civil Services (Executive
    185
    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. We 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
    throughout 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. The
    percentage of marks allocated for the viva voce test in case of ex-service officers may, for
    reasons we have already discussed, be somewhat higher than the percentage for the
    candidates belonging to the general category. We would therefore direct that in case of exservice 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.
  19. Before we part with this judgment we would like to point out that the Public Service
    Commission occupies a pivotal place of importance in the State and the integrity and
    efficiency of its administrative apparatus depends considerably on the quality of the selections
    made by the Public Service Commission. It is absolutely essential that the best and finest
    talent should be drawn in the administration and administrative services must be composed of
    men who are honest, upright and independent and who are not swayed by the political winds
    blowing in the country. The selection of candidates for the administrative services must
    therefore be made strictly on merits, keeping in view various factors which go to make up a
    strong, efficient and people oriented administrator. This can be achieved only if the Chairman
    and members of the Public Service Commission are eminent men possessing a high degree of
    calibre, competence and integrity, who would inspire confidence in the public mind about the
    objectivity and impartiality of the selections to be made by them. We would therefore like to
    strongly impress upon every State Government to take care to see that its Public Service
    Commission is manned by competent, honest and independent persons of outstanding ability
    and high reputation who command the confidence of the people and who would not allow
    themselves to be deflected by any extraneous considerations from discharging their duty of
    making selections strictly on merit. Whilst making these observations we would like to make
    it clear that we do not for a moment wish to suggest that the Chairman and members of the
    Haryana Public Service Commission in the present case were lacking in calibre, competence
    or integrity.
  20. We would also like to point out that in some of the States, and the State of Haryana is
    one of them, the practice followed is to invite a retired Judge of the High Court as an expert
    when selections for recruitment to the Judicial Service of the State are being made and the
    advice given by such retired High Court Judge who participates in the viva voce test as an
    expert is sometimes ignored by the Chairman and members of the Public Service
    Commission. This practice is in our opinion undesirable and does not commend itself to us.
    When selections for the Judicial Service of the State are being made, it is necessary to
    186
    exercise the utmost care to see that competent and able persons possessing a high degree of
    rectitude and integrity are selected, because if we do not have good, competent and honest
    Judges, the democratic polity of the State itself will be in serious peril. It is therefore essential
    that when selections to the Judicial Service are being made, 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 and since such sitting Judge comes 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, 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. We are giving this direction to the Public Service Commission in every State
    because we are anxious that the finest talent should be recruited in the Judicial Service and
    that can be secured only by having a real expert whose advice constitutes a determinative
    factor in the selection process.
  21. We accordingly allow the appeals, set aside the judgment of the Division Bench of the
    Punjab and Haryana High Court and reject the challenge to the validity of the selections made
    by the Haryana Public Service Commission to the Haryana Civil Services (Executive Branch)
    and other Allied Services. But in view of the fact that an unduly large number of candidates
    were called for interview and the marks allocated in the viva voce test were excessively high,
    it is possible that some of the candidates who might have otherwise come in the select list
    were left out of it, perhaps unjustifiably. We would therefore direct that all the candidates
    who secured a minimum of 45% marks in the written examination but who could not find
    entry in the select list, should be given one more opportunity of appearing in the competitive
    examination which would now have to be held in accordance with the principles laid down in
    this judgment and this opportunity should be given to them, even though they may have
    passed the maximum age prescribed by the rules for recruitment to the Haryana Civil Services
    (Executive Branch) and other Allied Services. We would direct that in the circumstances of
    the case the fair order of costs would be that each party should bear and pay his own costs
    throughout.

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