M. Katju, J.@mdashThe Petitioner did his B.A. L.L.B. and in pursuance of an advertisement by the Respondent No. 2 for filling vacancies of Munsifs in the State Judicial Service of U.P. appeared in the examination of 1987. He succeeded in the written test and was called for interview. The Petitioner obtained 499 marks in the written test out of 850 marks but was given only 40 marks in the interview and thus his total marks were 539. A list of selected candidates was prepared by the U.P. Public Service Commission and for the last post for which selection was held there were five candidates all having equal number of marks that is 539 whose names and marks in the written and oral tests have been given in para 7 of the writ petition. The Public Service Commission recommended the name of Sanjay Shanker Pandey who had the lowest marks in written test but had highest marks in the oral interview out of these five persons. Budh Ram. who had highest marks in the written test out of these 5 persons was selected in the 1986 examination and he has joined and is working as Munsif. Hence he excluded from the candidates to be considered for the 1987 examination.
2. The Petitioner got 499 marks in written test and 40 marks in oral interview, and thus in total he got 539 marks i.e. the same marks as Respondent No. 3. The Petitioner�s contention is that he should have been selected and not Sanjay Shanker Pandey. In this connection Rule 19 of the U.P. Nyayik Sewa Niyamawali, 1951 is relevant which States;
the Commission shall prepare a list of candidates, who have taken examination for recruitment to the service in order of their proficiency as disclosed by the aggregate marks finally awarded to each candidate. If two or more candidates obtain equal marks in the aggregate, the Commission shall arrange them in order of merit on the basis of their general suitability for the service. Provided that in making their recommendations, the Commission shall satisfy themselves that the candidate has obtained such an aggregate of marks in the written test that he is qualified by his ability for appointment to the service.
A perusal of Rule 19 shows that if two or more candidates obtain equal marks in the aggregate, the Commission has to arrange them in order of merit on the basis of the general suitability for the service Appendix ''E'' to the Rules contains Sub-clause (6) which states;
(6) Viva Voce--The suitability of the candidate for employment in the Judicial Service will be tested with reference to his record at school, College and University and his personality, address and physique. The questions which may be put to him may be of a general nature and will not necessarily be of an academic or legal nature.
Notes, (i) The marks obtained in viva voce will be added to the marks obtained in the written papers and the candidates place will depend on the aggregate of both.
3. The contention of the learned Counsel of the Petitioner, Shri Ashok Khare is that in the recent decisions of Hon''ble Supreme Court, the emphasis is on the written test and not on the oral interview. It has been held in these decisions that not more than 15 per cent of the total marks, should be allotted for the interview vide
4. I have heard Shri Ashok Khare, learned Counsel for the Petitioner, Shri Vinod Misra counsel for the U.P. Public Service Commission and Shri Yogesh Agarwal, learned Counsel for the Respondent No 3.
5. Shri Vinod Misra has submitted that Clause 6 of Appendix ''E'' to the rules has clarified Rule 19 and hence general suitability has to be assessed on the basis of the said Clause 6. I do not agree with this contention. Clause 6 does not relate to Rule 19 but to the viva voce or oral interview. We have to interpret Clause 5 of Appendix E in the context in which it appears, and in that context it is evident that it only relates to the oral interview, and not to the entire selection. No doubt Clause 6 mentions about suitability for employment in the Judicial Service, but we have to interpret these words in the context in which they appear. Appendix E to the Rules mentions about the written tests in the first 5 clauses, and then about the viva Voce in Clause 6. From this, and from the fact that Clause 6 begins with the heading ''Viva Voce.'' it is evident that it relates only to the oral interview. What Clause 6 therefore means is that for allotting marks for the oral interview the candidates, academic and extra-curricular record in student life may also be seen apart from his personality, behavior and physique.
6. There is another reason why I prefer the marks in the written test to be criterion for assessing general suitability rather than the factors mentioned in Clause 6 of Appendix E. According to the Laghava axiom in the Mimansa principles of Interpretation (see K.L. Sarkar''s Mimansa principles of Interpretation, Second Lecture), the construction which makes the meaning simpler and shorter is to be preferred where two or more meanings are possible. To interpret general suitability on the basis of marks in the written test is a short and simple interpretation and provides a clear objective test, where as to go by the criteria mentioned in Clause 6 will lead to a very complicated and involved procedure and wilt involve subjective considerations which may result in arbitrariness.
7. Shri Yogesh Agarwal, learned Counsel for the Respondent No. 3 has cited before me the decision of the Supreme Court in
8. It may be noted that in Lila Dhar''s case the Supreme Court has observed in para 6 that too much weight should not be given to the interview test. The Court has also referred in detail to the opinion of Glenn Stabl who has said that while oral interview has a place in the selection it is not very reliable for several reasons, and can result in arbitrariness.
9. In my opinion Rule 19 has to be interpreted in a manner which makes it constitutional, since if two views are possible the one which renders a statutory provisions constitutional should be resorted to. Rule 19 itself does not lay down the criteria for assessing general suitability and hence to make it non-arbitrary and in accordance with the logic of the judgments of the Supreme Court decisions referred to above (which prescribe a maximum of 15% marks for the interview) the correct interpretation of Rule 19 is that where two or more candidates have the same total marks the candidate having the highest marks in the written test should be appointed and not the candidate having the highest in the oral test. Such a view is in consonance with the decisions cited by Shri Khare wherein emphasis has been laid on the written test rather than the oral interview for the selection.
10. In Lila Dhar''s case (Supra) the allotment of 25% of the total marks for the oral interview in the Munsifs examination was held to be non-arbitrary. The decision distinguished the earlier decision in Ajay Hasia''s case AIR 1981 SC 487 on the ground that the said decision related to admission in a college and not to recruitment to a service. Subsequently, however, there was a gradual whittling down of this distinction. In A.K. Yadav''s case (supra) the Court took into account the Kothari Committee''s report which recommended that allocation of even 17.11 per cent marks in the interview for selection to the I A.S. was excessive.
11. In Mohinder Singh Garg''s case (supra) the selection was for recruitment to the post of Excise Inspector, and it was held that not more than 15 per cent marks should be allotted to the oral interview. This decision considered all the earlier decisions in great detail, and held that allotment of 25% marks for the interview was arbitrary and excessive. The decision in Garg''s case was followed in Munindra Kumar''s case (supra) Vikram Singh''s case (supra) and Ashok''s case (supra). It is true that none of these decisions have overruled Lila Dhar''s case, but have only distinguished it. However even in Lila Dhar''s case the marks allotted to oral interview were 25 per cent of the total, and hence even there 75% of the marks were for the written test. In other words, even there the emphasis was on the written test.
12. The reasons for placing emphasis on the written test is obvious. There is less chance of arbitrariness. The examiner of the written test does not know the name of the candidate whose copy he is examining, where as in the oral interview the name, caste and creed of the candidate are all known to the interviewers. Also, corruption nepotism and extraneous considerations e.g. political influence can exert an influence in the interview, but not in the written test as held in Ajai Hasia''s case. There are hence more chance of arbitrariness in the interview. Of course I do not mean to hold that for all selections whatever be their nature the written test must to given primacy. As held in para 25 of A.K. Yadav''s case whether primacy has to be given to the written or oral test will vary from service to service, but in the service with which we are concerned i.e. P.C.S. (Judicial), the primacy should be given to the written test as that will be more objective and impartial, and in appointment to the judicial service what is more important is academic knowledge including knowledge of law rather than personality or physique.
13. Shri Vinod Misra, who argued this case with great ability, submitted certain decisions of the Supreme Court which I may deal with now. In
14. Shri Misra then referred to State of Mysore v. K.N. Chandra Shekhar AIR 1965 SC 532, where it has been observed in para 10 that the High Court should not have directed inclusion of 6 persons in the select list. This decision is also distinguishable because in the present case 1 have to decide what should be the basis of general suitability where the total marks of 2 or more candidates are equal.
15. Shri Mishra also placed before me the decision of the Public Service Commission to give preference to the candidate who got higher marks in the oral interview where 2 or more candidates have the same total marks. As already observed above, no one can claim to be above the Constitution. The Public Service Commission too, must comply with the constitutional requirements, Hence the aforesaid decision of the Commission must be held to be illegal being in violation of Article 14 of the Constitution.
16. To sum up, in my opinion the correct interpretation of Rule 19 is that where two or more candidates have the same total marks the Commission shall arrange the candidates in order of merit giving preference to those having higher marks in the written test. Accordingly the the writ petition succeeds and I direct that the Petitioner should be appointed within two months of production of certified copy of the judgment before the State Government and he shall be treated as a selected candidate in the Batch of the 1987 Examination. The U.P. Public Service Commission shall recommend his name within three weeks of production of certified copy of this judgment before it. However, I do not quash the appointment of the Respondent No. 3 firstly because the law was not clear earlier and secondly because he has already been appointed and has been working for one and half years as Munsif. In para 28 of the decision in Ashok Kumar Yadav''s case the Supreme Court also did not set aside the selection made by the Public Service Commission after a lapse of two years and hence I do not quash the selection of Respondent No. 3 but I direct that in future the Public Service Commission will comply with this judgment in the selections. The Petitioner will be placed senior to Respondent No. 3.
17. With the aforesaid observations, the writ petition is finally disposed of.
