SUPREME COURT OF INDIA

Before:- Dr. A.S. Anand, CJI, R.C. Lahoti and Shivaraj V. Patil, JJ.

Civil Appeal No. 7666 of 1997. D/d. 20.2.2001

Onkar S. Sharma - Petitioner

Versus

Rajasthan Public Service Commission - Respondents

Constitution of India, Article 142 - Rajasthan Judicial Service Rules, 1955, Schedule 3 - Recruitment - Viva voce - Petitioner declared successful in written test - But could not appear in viva voce due to his illness despite providing two opportunities - Contention of the petitioner that he had secured enough marks more than some of the selected candidates in written examination and even if his marks in the interview were considered to be zero he was still entitled to be selected on the basis of aggregate marks - Held that viva voce test according to the Rules is an integral part of the selection process for adjudging the suitability of a candidate - Contention of the appellant held to be subversive of the Rules and does violate to the process of selection which comprises both viva voce and written examination - Since one post was lying vacant pursuant to the interim orders in the interest of justice appellant permitted to be interviewed by the Commission and selected to be appointed against that vacant post of 1994-95 batch.

[Paras 6 and 9]

ORDER

Dr. A.S. Anand, CJI. - This appeal by special leave is directed against the judgment of the Division Bench of the High Court dated 7.4.1997 dismissing special appeal of the appellant thereby upholding the order of dismissal of a writ petition by a learned Single Judge of that Court dated 7.11.1996.

2. Respondent No. 1 advertised 113 vacancies for recruitment to the Rajasthan Judicial Service. The appellant applied for one of the posts in response to the said advertisement. In the written examination conducted by respondent No. 1 on 14th/17th October, 1994, for recruitment to the Rajasthan Judicial Service, the appellant appeared and was declared successful. Subsequently, the appellant was also issued an interview letter on 22nd April, 1995. He was required to appear for an interview on 17th May, 1995. Unfortunately, the appellant fell ill on 14th May, 1995 and was advised complete bed rest. He accordingly requested for postponement of the date of his interview vide a letter dated 14th May, 1995. He sent medical certificate in support of the letter for postponement of his interview. Deputy Secretary to Rajasthan Public Service Commission thereupon postponed the date of interview from 17th May to 22nd May, 1995. The appellant, however, continued to remain ill and was unable to attend the interview on 22nd May, 1995 also. He sent another application to respondent No. 1, supported by a medical certificate, with the request that since he was unable to attend the interview on 22nd May, 1995, another date of interview may be fixed. That application was turned down by respondent No. 1 and subsequently results were declared. The appellant, thereupon filed a writ petition in the High Court.

3. According to the appellant, he had secured enough marks, more than some of the selected candidates in the written examination and even if his marks in the interview were considered to be zero, he was still entitled to be selected on the basis of his aggregate marks. The learned Single Judge, after considering the provisions of the Rajasthan Judicial Service Rules, 1955, read with Schedule 3 to the Rules opined that viva voce test was one of the necessary parts of the selection process and since the appellant had not taken part in the viva voce test, it could not be said that he had been wrongly excluded from selection. The plea of the appellant, that since there was no minimum percentage of marks prescribed for viva voce test, as absentee at the time of interview was, entitled to be considered in the position of a candidate who had appeared at the interview but failed to secure any marks, was also rejected. Aggrieved by the dismissal of his writ petition, the appellant filed D.B. Special Appeal. The Division Bench of the High Court held that viva voce test was an integral part of the selection process as it was at the time of interview that suitability of the candidate could be adjudged by an interview board and since the appellant had failed to avail of the opportunity to appear for the interview, he had not taken part in the complete selection process and, therefore, the order of the learned Single Judge did not suffer from any infirmity and consequently, the appeal was dismissed. The appellant, thereupon approached this Court.

4. On 7th November, 1997, leave was granted in the SLP filed by the appellant. In an application seeking directions, this Court on 1.2.1999 directed as follows :

"Heard learned Counsel for the parties.

In case there are any vacancies in respect of 1994-95, one of the posts may be kept vacant out of those vacancies during the pendency of the present appeal."

5. During the course of arguments on 16th January, 2001, learned Counsel for the appellant drew our attention to a communication dated 17th September, 1999 received by him from the Senior Legal Remembrancer, Govt. of Rajasthan, in which the factum of keeping one post still vacant (in respect of vacancies of 1994-95) was mentioned. Learned counsel for the respondent was granted time to seek instructions. Learned Counsel for the State of Rajasthan has today placed on record a copy of the communication received by her from the Govt. of Rajasthan dated 7th February, 2001 in which it has been stated that one vacancy in Rajasthan Judicial Service (1994-95) has been kept unfilled in compliance with the orders of this Court dated 1st February, 1999. Thus, at present for the 1994-95 batch, one post is lying unfilled.

6. We agree with the High Court that viva voce test, according to the Rajasthan Judicial Rules, is an integral part of the selection process for adjudging the suitability of a candidate and it is not open to a candidate who does not avail of the opportunity to participate in the viva voce test to contend that he was entitled to be considered for selection on the basis of the aggregate marks obtained by him in the written examination only. This argument is subversive of the Rules and does violence to the process of selection which comprises both viva voce and written examination.

7. There are, however, certain circumstances in this case which compel us to intervene in the interest of justice and to do complete justice between the parties in exercise of our jurisdiction under Article 142 of the Constitution.

8. It is not disputed that the appellant fell seriously ill and had sent his medical certificate on the basis of which his interveiw was first postponed. It is also not disputed that the appellant continued to remain ill and could not appear for interview even on the postponed date because of his illness and had sent his medical certificate along with an application for postponement of the date of interview. His request had been duly received by respondent No. 1. The date of interview (22.5.1995), however was not postponed by respondent No. 1. The interviews were concluded on 22nd May, 1995 itself, the very date when the medical certificate and the application for postponement was received by the Commission. Indeed, the appellant had been afforded an opportunity to appear at the interview but he was unable to appear on medical grounds, something beyond his control. Respondent No. 1 could have accommodated the appellant but it chose not to do so. The appellant has, undoubtedly, suffered.

9. One post has been lying vacant, pursuant to the interim orders made by this Court, since 1999. In the peculiar facts and circumstances of this case, interest of justice would be met, if the appellant is permitted to be interviewed by the Rajasthan Public Service Commission and if selected, to be appointed to Rajasthan Judicial Service against that vacant post for the 1994-95 batch. We make an order accordingly. We, however, clarify that this order has been made in the peculiar facts and circumstances of this case. It is not to be treated as a precedent. We also clarify that in the event the appellant is appointed after appearing for the interview and satisfying all other essential conditions for selection and appointment, the question of his seniority will be determined taking the date of his appointment to the Rajasthan Judicial Service as the basis. Respondent No. 1 shall, as far as possible, conduct the interview of the appellant within a period of two months from the date a copy of this order is received by it.

10. The appeal is disposed of in the above terms. No costs.

Order accordingly.