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K.K. Bhatia and anr. Vs. Rajasthan Public Service Commission and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 330 of 1971
Judge
Reported in1971WLN467
AppellantK.K. Bhatia and anr.
RespondentRajasthan Public Service Commission and ors.
Cases ReferredDevajit Chaliha v. Harendra Nath Baruah A.I.R.
Excerpt:
.....reason that they were riot the examiners.;(c) list of successful candidates forwarded not by all members of commission - whether recommendation is vitiated.;by the very nature of the responsibility which was placed on the commission by rule 20 of the rules, it was necessary that it should have been discharged by the chairman and all the members of the commission, and not merely by the chairman and one member. the failure to do so vitiated the list which was forwarded by the secretariat of the commission to the state government. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed..........counsel for the petitioners that in accordance with the definition contained in rule 2(c) of the rules, 'commission' means the rajasthan public service commission, and that a cross-reference to regulation 3 of the rajasthan public service commission (conditions of service) regulations, 1951, shows that the commission consists of 'the chairman and such number of members not less than two and not exceeding four as the government may appoint'. the learned counsel has therefore argued that as only the chairman and mr. b.d. mathur interviewed the candidates, and not the entire commission, the interviews were held in contravention of the provision of rule 19 of the rules and article 320 of the constitution which, according the learned counsel, required the commission to function as a body.....
Judgment:

P.N. Shinghal, J.

1. As the learned Counsel for the petitioners have not pressed some of the facts or grounds on which petitioners K.K. Bhatia and S.C., Sachdev have filed these writ petitions under Article 226 of the Constitution, it will be sufficient to refer to those facts and grounds which have figured in the controversy before roe.

2. The petitioners were appointed as Assistant Engineers under a Survey and Investigation Scheme of the Rajasthan Ground water Board, by an order of the State Government dated January 16, 1967. The appointments were ad hoc and temporary & the petitioners took over as Assistant Engineers on March 13, 1967. The Rajasthan Public Service Commission, respondent No. 1, hereinafter referred to as 'the Rules' The petitioners applied for those posts and appeared for interview before the Commission, They were however not selected and intimation Ex. I dated February 29, 1971 was. sent to them to those effect by the Secretariat of the Commission. The Commission selected respondents Nos. 3 to 19 for appointment as Assistant Engineers. The petitioners have challenged those selections and their own rejection by the, Commission, inter alia, on the grounds that (i) all the members of the Commission did not participate at the interviews which were held for selection the candidates, (ii) 'even the experts assisting the Commission were different on different dates', and (iii) the recommendation of those members of the Commission who interviewed the candidates was not circulated to the other members of the Commission before forwarding it to the State Government. The petitioners have prayed, inter alia, for a direction to the State Government not to give effect to the recommendation of the Commission and not to appoint respondent Nos. 3 to 19 as Assistant Engineers.

3. The Commission and the State of Rajasthan have traversed the claim of the petitioners altogether. The remaining respondents have not filed any reply. I am in agreement with the learned Counsel for the parties that no useful propose will be served by mentioning the replies of the two contesting respondents as the points of controversy can easily be decided on the basis of the admitted facts. Before examining those points it may be stated, however, that the Commission and the State of Rajasthan have not disputed or controverted the fact that the Chairman and Mr. B.D. Mathur, a member of the Commission, interviewed all the candidates and that the other members did not interview any candidate. So also, Mr. Daphtary has frankly admitted that the result of the interviews which were held by the Chairman and one member of the Commission was not placed before the other members of the Commission & that they did not see that result or the list which was forwarded to the State Government by the Secretariat of the Commission.

4. It has been argued by Mr. Joshi, learned Counsel for the petitioners that in accordance with the definition contained in Rule 2(c) of the Rules, 'Commission' means the Rajasthan Public Service Commission, and that a cross-reference to Regulation 3 of the Rajasthan Public Service Commission (Conditions of Service) Regulations, 1951, shows that the Commission consists of 'the Chairman and such number of members not less than two and not exceeding four as the Government may appoint'. The learned Counsel has therefore argued that as only the Chairman and Mr. B.D. Mathur interviewed the candidates, and not the entire Commission, the interviews were held in contravention of the provision of Rule 19 of the Rules and Article 320 of the Constitution which, according the learned Counsel, required the Commission to function as a body and not in compartments. The learned Counsel has, in this connection, made a reference to the proviso to Regulation 3 of the aforesaid Regulations to support his argument. He has argued further that in the absence of any statutory rule authorising the Chairman and one member of the Commission to carry on the interviews envisaged by Rule 19, it was not permissible for them to do so, and that the failure to associate the remaining members vitiated the interviews and invalidated the Commission's recommendation. The learned Counsel has made a reference to Anandilal Verma v. State of Rajasthan 1966 RLW 359 to support the argument that, as in the case of the provision in Article 235 of the Constitution in regard to the control of the High Court over district courts & courts subordinate there to 'Commission' means the full Commission.

5. Mr. Daphtary, learned Counsel for the Commission and the State of Rajasthan, has argued on the other hand that it was permissible for the Chairman and one member of the Commission to interview the candidates. He has pointed out that according to Article 320 of the Constitution it is the duty of the Commission, inter alia, to conduct examinations for' appointments to the services of the State as required by Clause (1), and to be consulted on the Matters stated in Clause (3). He has therefore argued that as in this case the Commission was required by Rule 19 of the Rules to discharge the function of conducting a viva voice examination by interviewing the candidates it was permissible for it to formulate its own procedure for that purpose, and that no objection could be taken as long as the Commission dealt with the matter with out bias, gave every candidate a fair opportunity, and arrived at its decision with a sense of responsibility. The learned Counsel has placed reliance on Board of Education v. Rice and Ors. 1911 A.C. 179 and Local Government Board v. Arlidge 1915 A.C. 120 for the purpose of supporting his argument. It has been contended by Mr. Daphtary that the argument based on the requirement of Clause (3) of Article 320 of the Constitution, which provides for consultation with the Commission, is quite misconceived and that the petitioners cannot advance their case by placing reliance on the decision in Anandilal Verma v. State of Rajasthan 1966 RLW 359 or any other case in which the provisions of Article 235 of the Constitution have been considered.

6. A reference to Article 320 of the Constitution shows that this argument of Mr. Dephtary is quite correct. That article specifies two important functions of a State Public Service Commission as follows-

(1) to conduct examinations for appointments to the services of the State, and

(2) to be consulted on the matters specified in Clause (3)

Each of these is a distinct function, so that the provision of Clause (3) of Article 320 making it obligatory that the Commission shall be consulted on the matters enumerated in it cannot be wrested for interpreting Clause (1) thereof. It follows therefore that in discharging its duty of conducting an examination for the selection of candidates for appointment as Assistant Engineers in the Rajasthan Ground Water Board Service the Commission was required to discharge a duty which was quite different from what it was required to do while answering a reference on consultation under Clause (3). It appears to me therefore that it was permissible for the Commission to discharge the duty of conducting the examination by entrusting it to one or more of its members and that it was not necessary for it to act in a body. In fact my attention Has not been invited to any general or special requirement of any law under which it could be said that it was necessary for the entire Commission to constitute itself into a Board of examiners for the purpose of selecting candidates for appointment to a service of which the rules made a provision that the candidates shall appear before the Commission for interview. It follows therefore that it was permissible for the Commission to nominate the examiners from amongst themselves, and to conduct the examination in that manner. In such a case it would be futile to contend that the examination would be illegal merely because all the members of the Commission did not choose to examine the candidates. It would not therefore matter if the task of examining the candidates was assigned to one or more members of Commission, and the examination would not be illegal if the other members were not directly associated with it.

7. A reference to Rules 16 to 19 of the Rules shows that they really pertain to the duty of the Commission to conduct an examination for selection of candidates for appointment to the Rajasthan Ground Water Board Service within the meaning of Clause (1) of Article 320 of the Constitution. Rule 16 provides for the inviting of applications by the Commission for selecting candidates to fill the vacant posts, Rule 17 deals with the form to be approved by the Commission for those applications, Rule 18 requires the payment of the fee fixed for the examination and Rule 19 deals with the scrutiny of the applications so that as many candidates as may seem desirable to the Commission may appear for interview. The scheme and the purpose of these rules there fore is to provide for the conduct of a viva voce examination by the Commission There is however no provision, either in Article 320 of the Constitution or Rule 19 of the Rules, requiring that the examination must be conducted by all the members of the Commission sitting together at the interview. It has therefore been left to the. Commission to decide whether all its members would examine the candidates sitting together or whether that responsibility would be discharged by some of the members nominated by it for the purpose.

8. Mr. Daphtary has placed before me and the learned Counsel for the petitioners a decision of all the members of the Commission dated January 15, 1967 that the interviews of the candidates for appointment as Assistant Engineers in the Rajasthan Ground Water Board Service shall be held by the Chairman of the Commission and its member Mr. B.D. Mathur. The interviews were held accordingly from February 1,1971 onward under that sanction of the Board, and the conduct of the viva voce examination by the Chairman and Mr. B.D. Mathur appears to me to be quite unexceptionable. I have examined the proviso to Regulation 3 of the Rajasthan Public Service Commission (Conditions of Service) Regulations, 1951, on which reliance has been placed by Mr. Joshi, but it does not seem to have any bearing on the point in controversy because it merely provides that the Commission shall not be precluded from functioning as such merely because of a temporary vacancy in the office of the Chairman or a member.

9. In this view of the matter, the decision in Anand lal Verma's case 1966 R.L.W. 359 is not relevant, and I have no hesitation in deciding the first point of controversy against the petitioners.

10. It has next been argued by Mr. Joshi that the interviews which were held by the Chairman and one member of the Commission were vitiated because they associated certain experts with them, and went on changing those experts with them, from time to time. This argument is however not tenable for two reasons. Firstly, the petitioners have not taken the plea that it was not permissible for the Chairman and the member to secure the presence of the experts at the time of the interviews, so that the Commission had no opportunity of explaining the facts and circumstances under which it was considered necessary to secure the presence of the experts and, secondly, it has not been contended or established that the experts sat as examiners along with the Chairman and the member and had the authority of selecting and rejecting candidates. The interviews were held for the purpose of examining candidates for recruitment to a technical service, and there is nothing unusual or wrong if some experts were required to be present for the purpose of advising the Chairman and the member whether a candidate gave correct answers to the questions which were put to him, for it may well be that a candidate may give a some what technical answer to an otherwise simple question So as long as the result of the examination rested with the Chairman and the member of the Commission, the mere presence of different experts on different dates would not matter for the simple reason that they were not the examiners.

11. This leaves for consideration the third argument of Mr. Joshi that a serious illegality was committed in as much as, contrary to the provisions of Rule 20 of the Rules, the entire Commission die not prepare the list of the candidates who were considered suitable for appointment, as Assistant Engineers and did not forward that list to the Government. The learned Counsel has supported his argument by reference to the decisions in Chandra Mohan v. State of Uttar Pradesh and Ors. A.I.R. S.C. 1978, Prem Nath and Ors. v. State of Rajasthan and Ors. : [1967]3SCR186 , A.K. Kraipak and Ors. v. Union of India and Ors. : [1970]1SCR457 , and Chandramouleshwar Prasad v. The Patna High Court and Ors. : [1970]2SCR666 . He has also pointed out that it was not in dispute in Devajit Chaliha v. Harendra Nath Baruah A.I.R. 1971 Assam Nagaland 136 that the nomination of the selected candidate was made by the Commission so that that decision can be of no avail to the petitioners.

12. It may be stated that this ground for challenging the validity of the list containing the names of the suitable candidates was taken by the petitioner by an amendment to which Mr. Daphtary had no objection. In fact, as had been stated, he frankly admitted that the result of the interviews held by the Chairman and one member of the Commission was not placed before the member of the Commission and they did not see that result or that list before it was forwarded to the Government. Mr. Daphtary has however argued that as it was permissible for the Chairman and one number of the Commission to interview the candidates in their capacity as examiners, it was inevitable that they should have prepared a list of the suitable candidates and arranged their names in order of merit. On these premises Mr. Daphtary has argued that it was merely a ministerial act for the Secretariat of the Commission to forward the list to the Government so that there was substantial compliance with the provisions of Rule 20.

13. I have already made a reference to the provisions of Rules 16 to 19 of the Rules, and they leave me in no doubt that while they while the procedure for direct recruitment to the Rijasthan Ground Water Board Service up to the stage of requiring the candidates to appear for interview, Rule 20 deals with a different stage and a different matter altogether, namely, the formulation and transmission of the recommendation of the Commission. It cannot be doubted that this is a very important matter, and its importance will emerge more clearly with reference to a service or post to which recruitment is made on the basis of a viva voce examination for which the Commission does not appoint any of its members bat entrusts the examination to outsiders. In such a case, those examiners will not doubt interview the candidates and prepare the marks sheet or list as a result of the 'examination, but that sheet or list will not automatically become the recommendation of the Commission. The reason is that the marks sheet or list records the result of the examination conducted by the examiner, and no more It does not therefore automatically turn itself into the recommendation of the Commission even though the examination was held in pursuance of the over all duty of the Commission to conduct the examination under its direction and control. To assume the character of the recommendation of the Commission, it is necessary that the Commission should consider the marks sheet or list prepared by the examiners, and give its sanction or approval This view finds support from the provision of Rule 20 of the Rules that the list should contain the names of only those candidates whom the Commission consider suitable for appointment to the 'posts concerned', so that it is clearly necessary for the Commission to examine and prune the list by deleting the surplus names. Then the proviso to Rule 20 provides that the Commission may keep the names of other suitable Candidates on a reserve list to the extent of 50 percent of the advertised vacancies, and to recommend them on a further requisition from the Government. The responsibility which has thus been placed on the Commission by Rule 20 of the Rules is important and is distinct from the holding of the examination. It does not require much argument to say that what holds good in the case of an examination by outsiders, will hold good in a case in which the examination is entrusted by the Commission to some of its members.

14. It therefore appears to me that by the very nature of the responsibility which was placed on the Commission by Rule 20 of the Rules, it was necessary that it should have been discharged by the Chairman and all the members of the Commission, and not merely by the Chairman and one member. The failure to do so vitiated the list which was forwarded by the Secretariat of the Commission to the State Government. I have gone through Devjit Chaliha's case A.I.R. 1971 Assam Nagaland 136 and it appears that there is justification for Mr. Joshi's argument that the petitioner there did not deny that the nomination of respondent No. 1, who was the selected candidate, was made by the Commission. That case is therefore clearly distinguishable and cannot be said to benefit the respondent.

15. In the result, as the list of the candidates who came but successfully at the viva voce examination could not ipso facto assume the status of the list of the suitable candidates which was required to be perspired by the Commission in accordance with Rule 20, it could riot have been forwarded by the Commission's Secretariat to the Government and was not, at any rate, a valid list on the basis of which the Government could select the candidates under Rule 22 of the Rules, and there is justification for the prayer that the respondent State should be restrained from giving effect to it. It is ordered accordingly. The petitioners will be entitled to one set of costs from the respondents.


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