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Panduranga (K.) Vs. State of Mysore and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 2662 of 1965
Judge
Reported in(1970)ILLJ309Kant
ActsMysore Public Service Commission (Conduct of Business and Additional Functions) Act, 1959 - Sections 13; Mysore Public Service Commission (Functions) Rules, 1957 - Rule 3; Mysore Recruitment of Gazetted Probationers Rules, 1959 - Rule 4; Mysore Commercial Tax Service (Recruitment) Rules, 1964; The Cadre and Recruitment Rules; General Recruitment Rules - Rule 3; Constitution of India - Articles 4, 16(4) and 309
AppellantPanduranga (K.)
RespondentState of Mysore and ors.
Excerpt:
.....between such stations on opposite sides of road, prescribed. proposed fuel station of respondent and existing fuel station of petitioner were on either side of a high way. prohibition of distance between two adjoining stations would not apply. - 32. now, the public service commission made a clear elucidation of the scope of that viva voce, and so, the petitioner cannot complain that he had no information as to its nature. 40. we are clearly precluded from investigating the validity of this submission by reason of at least three pronouncements of the supreme court in balaji v. 271] (vide supra) and the exposition made in the two latter cases clearly negatives the interpretation suggested by sri havanur......stated that that examination shall consist of a written examination in general knowledge and a viva voce. after that examination was conducted, 31 persons were appointed as assistant commercial tax officers by notification made by government on 4 september, 1965. on the basis of the results of that examination. the petitioner who was one of the candidates and who was not included in the list of selected candidates impeaches these appointments on more than one ground. 2. before discussing the submissions in denunciation of the impugned appointments, we should mention that there are as many as five prayers in the writ petition. the first is that we should strike down rule 3 of the mysore public service commission (functions) rules, 1957, which according to the petitioner transgresses.....
Judgment:

Per Somnath Ayyar, J.

1. By a notification prepared by the State Public Service Commission on 6 April, 1964. It was announced that a competitive examination would be conducted for recruitment of probationers for the posts of Assistant Commercial Tax Officers, class II. That notification stated that that examination shall consist of a written examination in general knowledge and a viva voce. After that examination was conducted, 31 persons were appointed as Assistant Commercial Tax Officers by notification made by Government on 4 September, 1965. On the basis of the results of that examination. The petitioner who was one of the candidates and who was not included in the list of selected candidates impeaches these appointments on more than one ground.

2. Before discussing the submissions in denunciation of the impugned appointments, we should mention that there are as many as five prayers in the writ petition. The first is that we should strike down rule 3 of the Mysore Public Service Commission (Functions) Rules, 1957, which according to the petitioner transgresses the provisions of Art. 4 of the Constitution. But Sri Havanur appearing for the petitioner informed us that the petitioner does not press this prayer.

3. The second prayer is that we should quash note (ii) to Para 4, of the notification made by the Public Service Commission that an examination would be conducted. The third prayer is that we should quash a notification of Government made on 16 September, 1963 which incorporates a formula for the determination of backward classes for purposes of Art. 16(4) of the Constitution. The fourth prayer is that we should quash the impugned appointments of respondents 3 to 33 which were made by Government by their notification dated 4 September, 1965. The next and the last prayer is that we should strike down S. 13 of the Mysore Public Service Commission (Conduct of Business and Additional Functions) Act, 1959. But Sri Havanur informed us that the petitioner does not press this part of the writ petition.

4. It is seen that the petitioner has withdrawn from the first and the fifth prayers in the writ petition and so, the other three alone remain. We shall first discuss the condemnation of the impugned appointments. The principal criticism levelled against them is that the viva voce conducted by the Public Service Commission was not the examination prescribed by the Mysore Recruitment of Gazetted Probationers Rules, 1959, made by the Governor under the proviso to Art. 309 of the Constitution on 11 September 1959. Those rules govern recruitment to the post of an Assistant Commercial Tax Officer since that post is a gazetted post. Rule 4 of those rules which directs recruitment on the basis of the results of the annual examinations, reads :

'4. Examination - Recruitment under these rules shall be made on the basis of the results of annual examinations consisting of a written examination in general knowledge and a viva voce conducted by the Commission. The maximum marks for the written examination shall be 200, and for the viva voce 100.'

5. Paragraph 4 of the notification by which the Public Service Commission made the announcement that a competitive examination would be conducted reads :

'4. The examination shall consist of a written examination in general knowledge and a viva voce conducted by the Commission. The maximum marks for the written examination shall be 200 and for the viva voce 100.

Note. - (1) General knowledge includes knowledge of current events and of such matters of every-day observation and experience in their scientific aspects. The paper will also include questions on Indian history and geography, the Constitution of India, their five-year plans and the community development and general principles of public administration, etc.

(ii) The object of the viva voce will be to assess the suitability of the candidates for appointment to the gazetted cadre, and their calibre including intellectual, social and moral traits of personality, such as critical powers of assimilation, clear and logical exposition, judgment, variety and depth of interests and capacity for leadership.'

6. Sri Havanur maintained that the announcement transmitted no information as to the subject in which the viva voce would be conducted and that the power to name the subject resided only in the Governor and that since it was not so named in rule 4 of the Mysore Recruitment of Gazetted Probationers Rules, 1959, or otherwise, the Public Service Commission could not conduct the viva voce unless the subject was prescribed by the Governor. It was contended that there could be no viva voce except in a given subject and that the examination conducted for measuring intangible qualities, such as, those to which note (ii) to Para 4 of the notification refers, without an objective standard for the assessment of even those intangible qualities, did not have the status of the viva voce to which rule 4 of the rules refers.

7. Rule 4 of the Mysore Recruitment of Gazetted Probationers Rules which prescribes general knowledge as the subject for the written examination does not state the subject of the viva voce. But there is some general provision in rule 3 of the Mysore Public Service Commission (Functions) Rules, 1957, which makes it the duty of the commission to advise Government about rules and regulations concerning the syllabus of an examination. Under these rules, the Public Service Commission could invite applications only after those rules and regulations are made by Government. Before discussing this rule, we shall refer to the relevant rules regulating recruitment.

8. Since the post of an Assistant Commercial Tax Officer is a gazetted post, there are at least three sets of rules which regulate recruitment to that post. Those rules are the Mysore State Civil Services (General Recruitment) Rules, 1957; the Mysore Recruitment of Gazetted Probationers Rules, 1959; and the Mysore Commercial Tax Service (Recruitment) Rules, 1964. The first set of rules will be referred to as the General Recruitment Rules, the second as the Gazetted Probationers Rules, and the third as the Cadre and Recruitment Rules.

9. The Cadre and Recruitment Rules which were made by the Governor under the proviso to Art. 309 of the Constitution on 25 January, 1964, directs, among other matters, that 50 per cent of the posts of an Assistant Commercial Tax Officer shall be filled up by direct recruitment and, the announcement made by the Public Service Commission which is impeached in this writ petition, was an announcement that recruitment will be made by that process.

10. Rule 3 of the General Recruitment Rules provides for three methods of recruitment, and one of them is recruitment by a competitive examination which was the one adopted in the case before us.

11. Rule 4 of the Gazetted Probationers Rules with which we are principally concerned, directs as we have already observed, recruitment to every gazetted post on the basis of the results of annual examinations, and, the recruitment to which this rule refers is, it is common ground, direct recruitment. This rule which we have already set out prescribes a written examination in general knowledge and a viva voce whose subject is not indicated. Since the words 'general knowledge' occur after the words 'written examination in' and before the words 'and a viva voce' it is not difficult to conclude that 'general knowledge' which is the subject for a written examination is not the subject for the viva voce. It is this feature of rule 4 which has assisted the presentation of an argument by Sri Havanur that there was an omission by the Governor who made the Gazetted Probationers Rules to specify the subject in which the viva voce had to be conducted and, that that imperfection makes it impossible for the Public Service Commission to conduct the examinations directed by rule 4 or to make a recruitment on the basis of that rule.

12. We have already observed that while this is the content of rule 4 of the Gazetted Probationers Rules, rule 3 of the Mysore Public Service Commission (Functions) Rules, 1957, which will be referred to as the Functions Rules directs the Public Service Commission to advise Government with regard of the syllabus of an examination which the Commission is under a duty to conduct for recruitment to services.

13. It is not very clear from the material placed before us whether the viva voce examination such as the one to which note (ii) of the notification of the Public Service Commission in Para. 4 refers, was the examination which was advised by the Public Service Commission and approved by Government under rule 3 of the Functions Rules. We must presume in the absence of any allegation to the contrary by the petitioner, that that advice was tendered and accepted.

14. But Sri Havanur made it clear to us that it is not the petitioner's case that no advice was tendered under rule 3 of the Functions Rules or that it was not accepted; but contended that the Cadre and Recruitment Rules which direct direct recruitment to the extent of fifty per cent of the posts should have prescribed the examination, and that since those rules do not do it, the examination was outside the competence of the Commission. His alternative contention was that rule 3 of the Functions Rules directs rules prescribing the syllabus for an examination, and that the Cadre and Recruitment Rules made by the Governor are those rules which are authorized by rule 3 of the Functions Rules, and that since those rules omit to prescribe the syllabus, the Public Service Commission could not proceed to conduct the examinations.

15. We do not agree that the Cadre and Recruitment Rules are the rules made under rule 3 of the Functions Rules. The argument to the contrary has to be negatived on the short ground that the rules under rule 3 of the Functions Rules have to be made by Government, while the Cadre and Recruitment Rules are made by the Governor under the proviso to Art. 309 of the Constitution.

16. We do not accept the argument that there is a lacuna in the Cadre and Recruitment Rules. The Gazetted Probationers Rules were made by the Governor on 11 September, 1959, after the Cadre and Recruitment Rules were first made in 1959, and rule 4 of those rules incorporates an express direction as to how the direct recruitment has to be made and on what basis. That rule says that that direct recruitment shall be made on the basis of an annual examination. The omission by the Governor to prescribe an examination is the Cadre and Recruitment Rules thus ceases to have any materiality.

17. The more serious argument presented by Sri Havanur was, that even so, rule for the Gazetted Probationers Rules does not prescribe the syllabus or subject for the viva voce examination, and that that syllabus could not have been prescribed by the Public Service Commission even if it could be said that such prescription is indicated by note (ii) to Para. 4 of the notification published by it.

18. It will be observed that rule 4 of the Gazetted Probationers Rules which prescribes a subject for the written examination prescribes none for the viva voce. So it is clear that the viva voce to which it refers is not an oral examination in any specified subject. Can we therefore say that viva voce was not possible If it was not, recruitment was equally impossible.

19. The Latin expression viva voce when used as a noun means an oral examination, which, more often than not, supplements a written examination and is believed to be an efficacious instrument for the estimation of suitability for a civil post. Sometimes, the subject for the viva voce is the same as that for the written examination as it happens in the case of University examinations and sometimes not. The purpose of the viva voce, however, is the discovery of abilities and deficiencies not displayed by the performance in the written examination.

20. But there is another species of a viva voce. That viva voce which is normally preferred for assisting recruitment to the services is a test devised for the assessment of abilities, aptitudes, attainments and accomplishments of the candidate in spheres which have relevance to suitability in the context of responsibilities and duties of the post which he seeks. The purpose of this viva voce is to evaluate those qualities, while the viva voce or the written examination in a specified subject, measures the ability of the candidate to remember the volume of knowledge in a specified subject in which the examination is conducted, and, his capacity for the organization of that knowledge and its application in a suitable way.

21. The viva voce of this pattern can have thus no subject as such, for, its purpose is not to assess scholarship or learning, but, the evaluation of qualities which contribute suitability for the appointment which he seeks.

22. If, therefore, rule 4 does not name a subject for the viva voce to which it refers, it should be reasonable to say that the viva voce directed by it includes this general pattern. That is what, we think, we should deduce from the omission on the part of the Governor to name the subject for the viva voce, which does not invalidate the rule or make the Public Service Commission powerless to conduct the viva voce, or, the appointing authority to make a recruitment under that rule.

23. Now, note (ii) to Para. 4 of the impugned notification of the Public Service Commission which we have already extracted states that the purpose of the viva voce was

'to assess the suitability of the candidate for appointment to the gazetted cadre, and their calibre including intellectual, social and moral traits of personality, such as critical powers of assimilation, clear and logical exposition, judgment, variety and depth of interests and capacity for leadership.'

24. The meaning of this note is that the candidates appearing at the viva voce examination would be interrogated in respect of the matters to which it refers. It is clear intimation to the candidate that he will be questioned by the examiners in respect of matters the answers to which could demonstrate his suitability for the gazetted cadre and his calibre, the facets of the personality to which the note refers, and the measure of perspicacity and sagacity to which it alludes. The enumeration in the note demonstrates that the Commission intended to conduct the viva voce examination to discover qualities other than academic equipment.

25. It is not improbable that the character of the viva voce was settled on the advice given by the Public Service Commission and accepted by Government under rule 3 of the Functions Rules.

26. However that may be, we incline to the view that the pattern of the viva voce emerging from note (ii) to Para 4, of the impugned notification is a pattern authorized by rule 4 of the Gazetted Probationers Rules, since, in the absence of the specification of the pattern by that rule, the Public Service Commission was at liberty to select the comprehensive pattern.

27. Now, the purpose of the written examination to which note (i) refers is to assess suitability on the basis of academic equipment in the component subjects comprising the main subject which is referred to as general knowledge. The purpose of the viva voce to which note (ii) refers, was to assess suitability on the basis of other attributes such as those enumerated in it.,

28. One of the attributes to which that note refers is suitability for a gazetted cadre. The written examination referred to in note (i) measures suitability flowing from sufficient general knowledge so essential to the occupant of a gazetted office, while, there viva voce assesses suitability by the application of other standards.

29. Note (ii) then refers to the assessment calibre of the candidate. What is so assessed is the candidate's intellectual power and natural endowment in that sphere. It is explained in that part of the notification that the investigation extends to aspects such as the 'intellectual, social and moral traits of personality.' The intellectual trait of which it speaks, may overlap the quality which is described as calibre. But the candidate's social and moral traits reflect his aptitudes, emotions and character.

30. Note (ii) adds that candidate's powers of assimilation, exposition, judgment, variety and depth of interests and capacity for leadership would also be estimated, to decide suitability. That estimation would portray the reach and compass of the candidate's mind, his powers of comprehension, penetration, versatility and ability for organization.

31. The standards which note (ii) enumerates are not irrelevant and it is plain that a viva voce for which a specified subject is named, is quite in apposite to the assessment of the multitude of attributes to which that note refers. It can reveal no more than the candidate's real academic equipment in that subject. But the profile which displays his other strengths and weaknesses which have materiality, is supplied only by a viva voce which has a more general background than the one provided by the prescription of a subject. That viva voce is a more efficacious diagnostic instrument for the estimation of those other qualities, and we see no reason to take the view that the more comprehensive viva voce such as the one conducted by the Public Service Commission, is excluded by rule 4 of the Gazetted Probationers Rules.

32. Now, the Public Service Commission made a clear elucidation of the scope of that viva voce, and so, the petitioner cannot complain that he had no information as to its nature.

33. So, the criticism of the viva voce fails.

34. But it was said that the viva voce did not involve the application of any objective standards by the application of which the required qualities of a candidate could be measured.

35. It is not necessary that it should rest upon any such objective standards. Indeed, as in the case of a written examination, marks are awarded by the examiners on the subjective assessment which they make of the performance, and so, it is, in the case of a viva voce examination where the examiners award marks on a similar principle. So long as it is not demonstrated that the examiners abused the power confided to them, it is not for a Court to investigate whether the marks awarded were commensurate with the performance of the candidate. That is a sphere in which the subjective opinion of the examiners is conclusive in that situation.

36. There is nothing in the decision of this Court in Chandrasekhara v. State of Mysore [1962 Mys. L.J. 87] which can be useful to the petitioner. That was a case in which the Public Service Commission made an illegitimate expansion of the Governor's syllabus for the viva voce and announced that the candidate's 'personality and suitability' would also be assessed. This Court was of the view that such enlargement of the scope of the viva voce was beyond the competence of the Commission. It was also observed that the other infirmity in the announcement of the Commission was that it spoke of intangible qualities such as 'personality and suitability' without reference to their facets, unlike the announcement in the present case which is specific enough. It is in that context that there was a discussion relating to a subject for a viva voce since the Governor had prescribed one. But this Court did not make the enunciation that a more general and comprehensive viva voce for the estimation of appropriate qualities was forbidden.

37. We shall now proceed to discuss the other submissions made to us in the context of the viva voce conducted by the Commission. It was said that too many marks were prescribed for the viva voce and that the allotment of an excessive maximum for that branch of the examination provided scope for manipulation and abuse. This was the very argument which was repelled by the Supreme Court in Chitralekha v. State of Mysore [1964 Mys. L.J. S.C.C. 11] in which it was explained that such opportunity for manipulation with little chance of detection is an much available in a written examination as in the case of a viva voce examination.

38. It was at one stage contended that the examiners divided themselves into two groups, and that the group which conducted the viva voce for some of the candidates had no opportunity of assessing the performance of the candidates examined by the other group. It was explained to us by Sri Havanur that it was for this reason that the petitioner included a prayer in his writ petition that we should strike down S. 13 of the Mysore Public Service Commission (Conduct of Business and Additional Functions) Act, 1959. But Sri Havanur withdrew from the argument and intimated us that he would not press the contention, and so, we say nothing about it.

39. The next condemnation of the impugned appointments rested on the contention that the petitioner who really belongs to the backward classes, was not included in that group by reason of an invalid determination made by the State Government on 16 September, 1963 in exercise of the power created by Art. 16(4) of the Constitution. Sri Havanur contended that although the criteria enumerated in that notification may not be unacceptable, those criteria had to be applied set to individuals as stated by the notification but to groups of persons associated with race, religion or caste.

40. We are clearly precluded from investigating the validity of this submission by reason of at least three pronouncements of the Supreme Court in Balaji v. State of Mysore : AIR1963SC649 ; Chitralekha v. State of Mysore [1964 Mys. L.J. S.C. 11] (vide supra); Triloki Nath Tiku and another v. State of Jammu and Kashmir and others [1967-II L.L.J. 271]. We cannot accede to the contention of Sri Havanur that the argument propounded by him is really what flows from the decision in Balaji v. State of Mysore : AIR1963SC649 (vide supra) since the meaning of the enunciation in that case was again explained by the Supreme Court in Chitralekha v. State of Mysore [1964 Mys. L.J. S.C.C. 11] (vide supra) and Triloki Nath Tiku and another v. State of Jammu and Kashmir and others [1967 - II L.L.J. 271] (vide supra) and the exposition made in the two latter cases clearly negatives the interpretation suggested by Sri Havanur.

41. We must, therefore, negative the challenge made to the notification under Art. 16(4) of the Constitution.

42. Sri Havanur did not advance any other argument in support of this writ petition save those discussed in this judgment. As already observed, he informed us that the other contentions raised in the writ petition are not pressed.

43. We dismiss this writ petition. But we make no direction in regard to costs.


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