Pradeep Kumar And Another v. State Of Haryana And Others

N.K Sodhi, J.:— This judgment will dispose of three writ petitioners Nos. 6738, 7357 and 9565 of 1990 as common questions of law and facts arise in them. In order to appreciate the controversy between the parties, the facts are being taken from Civil Writ Petition 6738 of 1990.

2. Some posts of Taxation Inspectors fell vacant in the office of Excise and Taxation Department of the Government of Haryana and by an advertisement published in the daily ‘Indian Express’ dated 7.7.1988 applications were invited. The petitioners along with many others filed their applicatiions for the posts so advertised. There were in all 96 posts out of which 24 posts had been reserved for Scheduled Castes. It is the admitted case of the parties that 18 out of these 24 posts meant for Scheduled Castes have already been filled up by selection made by the respondent-State through the Subordinate Services Selection Board, Haryana and the remaining six are still lying vacant.

3. Recruitment to the service is governed by the Haryana Excise and Taxation Inspectorate (State Service Class III) Rules, 1969 (hereinafter called the Rules). The Rules prescribe that selection to the service is to be made on the basis of a competitive examination consisting of a written test followed by a viva voce test.

4. Appendix ‘D’ to the Rules prescribes 250 marks for the written test and 100 marks for viva voce. Viva voce test, thus carries about 28.5% of the total marks. The petitioners who took the competitive examination but were not selected, challenged the selection by filing the present writ petitions solely on the ground that the proportion of marks allocated to viva voce test was quite high and that it introduced an element of arbitrariness in the process of selection which offends Articles 14 and 16 of the Constitution of India.

5. Their Lordships of the Supreme Court in Ashok Kumar Yadav etc. v. State of Haryana, 1986 Lab. I.C 1417 while dealing with a similar contention pertaining to recruitment to the Haryana Civil Service (Executive Branch) held that marks allocated to viva voce should not exceed 12.2% of the total marks taken into account for the purpose of selection and made the following observations:—

“The percentage of marks allocated for the viva voce test by the Union Public Service Commission in case of selections to the Indian Adminstrative Service 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. This Court would therefore direct that hereafter in case of selections to be made to the Haryana Civil Service (Executive Branch) and other allied services, where the competitive examination consists of a written examination followed by a viva voce test, the marks allocated for the viva voce test shall not exceed 12.2% of the total marks taken into account for the purpose of selection. The Court would suggest that this percentage should also be adopted by the Public Service Commissions in other States, because it is desirable that there should be uniformity in the selection process 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.”

6. A similar question again arose before the Full Bench of this Court in Joginder Singh v. The State of Haryana, 1986 (3) S.L.R 644 wherein the selection of Taxation Inspectors governed by the Rules was challenged on the ground that the marks for viva voce were highly excessive. The Full Bench negatived the contention and observed as under:—

“In view of the aforesaid discussion, the only, conclusion that can be arrived at is that on the basis of the decision in Ashok Kumar Yadav's case (supra) it cannot be held that with regard to each and every Service including the posts of Taxation Inspectors in the State of Haryana where both written and viva voce examination is prescribed, only 12.2 per cent marks had. to be assigned for the viva voce test.”

7. As to what should be the precise weight to be given to the viva voce test vis-a-vis the written examination, it was held as under:—

“It must vary from service to service according to the requirements of the service, the minimum qualification prescribed, the age group from which the selection is to be made, the body to which the task of holding the viva voce test is proposed to be entrusted and a host of other factors.” Appointments made to the posts of Excise Inspectors in the Excise & Taxation Department, Haryana governed by the Rules were again challenged in this Court in Vikram Singh v. Subordinate Services Selection Board, Haryana, 1988 (5) SLR 78 (Pb. & Hry.), the contention of the petitioners therein being that the proportion of marks allocated to viva voce was highly excessive and reliance was placed on Ashok Kumar Yadav's case (supra).

The contention was turned down by the Full Bench of this Court and it was held that in Ashok Kumar Yadav's case the Supreme Court had fixed the percentage of viva voce marks at 12.2% only in the case of recruitment to the Haryana Civil Services (Executive Branch) and the present Rules prescribing 28.5% of the total marks for viva voce were upheld as according to the learned Judges of the Full Bench this percentage did not offend Articles 14 and 16 of the Constitution. The matter in Vikram Singh's case (supra) was taken in appeal to the Supreme Court and their Lordships of the Supreme Court reserved the judgment of the Full Bench in Vikram Singh's case and held that the selection made on the basis of the Rules making a provision of 28.5% marks for viva voce ???st was highly ???xcessive and in clear violation and disregard of the principle laid down in Ashok Kumar Yadav's case (supra). The other Full Bench decision of this Court in Joginder Singh's case and another Full Bench decision in Mohinder Sain Garg's case were also reserved in Vikram Singh v. Sta???e of Haryana, J.T 1990 (4) S.C 528 and Mohind???r Sain Garg v. State of Punjab, J.T 1990 (4) S.C 704.

8. The judgments of the Supreme Court in Vikram Singh's case and Mohinder Sain Garg's case (supra) had not yet come and while the Full Bench judgments of this Court in Joginder Singh's case (supra) and Vikram Singh's case (supra) were holding the field, the present writ petitions filed by the petitioners were dismissed by this Court in limine. The petitioners filed Special Leave Petitions in the Supreme Court and their Lordships by an order dated April 2, 1991 set aside the order of dismissal and remanded the case back to this Court with a direction to dispose of the cases after passing a speaking order. This is how the matter is now before me.

9. Having heard counsel for the parties, I am of the view that the matter herein is ???quarely covered by the decision of the Supreme Court in Vikram Singh's case (supra) and Mohinder Sain Garg's case (supra). In the context of the Rules governing the service, their Lordships of the Supreme Court in Vikram Singh's case (supra) have held that keeping 100 marks for viva voce i.e 28.5% of the total marks was unreasonable and against the principles laid down in Ashok Kumar Yadav's case. The selection made on the basis of the Rules was, thus, held to be illegal but as the selected candidates had already joined the posts long back, their Lordships did not quash their selection and directed the State to appoint the appellants therein. Following the course adopted by their Lordships of the Supreme Court, I hold that the selection made in the present case is also illegal for the same reason but as the selected candidates have since long joined their posts, it will not be reasonable to quash their appointments, though their selection was certainly illegal. In the circumstances, I refrain to quash the selection of the selected candidates and instead direct respondents 1 to 3 to give appointments to the petitioners to the Posts of Taxation Inspectors six of which posts are already lying vacant in case the petitioners are otherwise suitable for the posts. It is made clear that in case the petitioners have become overage during the intervening period, it would not be considered as a disqualification for their appointment. The parties shall bear their own costs.

10. Orders accordingly.