8-2-2022 Order delivered on - High Court Chhattisgarh

W.P.(S)Nos.1291/2021 & 5651/2021

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AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Writ Petition (S) No.1291 of 2021

Order reserved on: 8-2-2022

Order delivered on: 23-2-2022

1. Kamal Singh Rajput, S/o Thakur Singh, aged about 28 years, R/oVillage Bicharpur, Post Sukli, Tahsil Lormi, District Mungeli (C.G.)

2. Rajeev Gupta, S/o Koshor Lal Gupta, aged about 27 years, R/o JMQ– 100, Bishrampur, Surajpur (C.G.)

3. Rahul Tiwari, S/o Mahatam Tiwari, aged about 30 years, R/oBramhdev Colony, Ward No.63, Bhatgaon, Behind DanteshwariTemple, Raipur, District Raipur (C.G.)

---- Petitioners

Versus

1. State of Chhattisgarh, Through Secretary, Health and Family WelfareDepartment, Mahanadi Bhawan, Mantralaya, Atal Nagar, Nava Raipur,District Raipur (C.G.)

2. Director, Health Services, Directorate, Indrawati Bhawan, Atal Nagar,Nava Raipur, District Raipur (C.G.)

---- Respondents

AND


1. Dr. Kamal Singh Rajput, S/o Thakur Singh, aged about 28 years, R/oVillage Bicharpur, Post Sukli, Tahsil Lormi, District Mungeli (C.G.)

2. Dr. Himanshu Dubey, S/o Kiran Kumar Dubey, aged about 28 years,R/o Village Tayang, Post Jaimura, Tahsil Kharsiya, District Raigarh(C.G.)

---- Petitioners

Versus

1. State of Chhattisgarh, Through Secretary, Health and Family WelfareDepartment, Mahanadi Bhawan, Mantralaya, Atal Nagar, Nava Raipur,District Raipur (C.G.)

2. Director, Health Services, Directorate, Indrawati Bhawan, Atal Nagar,Nava Raipur, District Raipur (C.G.)

---- Respondents

W.P.(S)Nos.1291/2021 & 5651/2021

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------------------------------------------------------------------------------------------------------For Petitioners: Mr. C. Jayant K. Rao, Advocate. For Respondents / State: -

Mr. Amrito Das, Additional Advocate General and Mr. Jitendra Pali, Deputy Advocate General.

------------------------------------------------------------------------------------------------------

Hon'ble Shri Justice Sanjay K. Agrawal

C.A.V. Order

1. The petitioners of W.P.(S)No.1291/2021 have called in question the

recruitment notice dated 14-10-2020 for 300 posts of Medical Officers

(Class-II) issued by respondent No.2 herein in accordance with the

Chhattisgarh Medical Officers (Gazetted) Service Recruitment Rules,

2013 (for short, ‘the Rules of 2013’) on the ground that in accordance

with Rule 6(1) of the Rules of 2013, holding of written examination is

mandatory for recruitment on the post of Medical Officer. This Court

by order dated 8-3-2021 stayed the recruitment process and

thereafter, that recruitment process was cancelled by respondent No.2

and thereafter, during the pendency of writ petition, additional vacancy

of 143 posts came into existence and consequently, the earlier

recruitment process initiated by recruitment notice dated 14-10-2020

came to be cancelled and new recruitment notice dated 20-9-2021

was notified for recruitment on the post of 443 Medical Officers which

has been called in question in W.P.(S)No.5651/2021. In that view of

the matter, both the writ petitions have been clubbed together, heard

together and are being disposed of by this common order.

2. Since the recruitment notice dated 14-10-2020 is said to have been

cancelled and new recruitment notice dated 20-9-2021 has been

issued, which has been called in question in W.P.(S)No.5651/2021,

therefore, the facts pleaded in the subsequent writ petition i.e. W.P.(S)

No.5651/2021 are taken for the sake of convenience.

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3. Case of the petitioners is that they have obtained MBBS degree from

Chhattisgarh Institute of Medical Sciences, Bilaspur and Pt. J.N.M.

Medical College, Raipur in the year 2017 and are having requisite

qualification for the post of Medical Officer. Recruitment notice dated

20-9-2021 has been issued to fill up the vacancy of Medical Officer

under the Rules of 2013, which the respondents are conducting

recruitment only on the basis of interview without conducting any

competitive examination which is contrary to Rule 6(1) as well as Rule

11 of the Rules of 2013, as the recruitment process is contrary to Rule

6(1) and only on the basis of interview, recruitment on the post of

Medical Officer cannot be permitted to be conducted and further,

award of marks by Annexure R-1 dated 13-10-2021 by which 40%

marks have been awarded to educational qualification, 15% marks for

knowledge of national programmes, 15% for knowledge of public

health subjects, 25% for experience of working in government

institutions and 5% for personality, is also equally arbitrary, therefore,

the advertisement / recruitment notice dated 20-9-2021 for the post of

Medical Officers be quashed and the respondents be directed to

consider the petitioners for the post of Medical Officer.

4. Return has been filed on behalf of the respondents herein stating inter

alia that considering the available vacancies in the Department, the

respondents decided to make recruitment to the post of Medical

Officers in Class-II to as many as 443 posts for which recruitment

notice dated 20-9-2021 has been issued in order to fill-up the said

posts of Medical Officers so as to provide the State Government with

adequate assistance in discharging the health services during the

COVID-19 pandemic and thereafter also. The recruitment notice was

W.P.(S)Nos.1291/2021 & 5651/2021

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issued on 20-9-2021 and qualified doctors were required to submit

their candidature by 12-10-2021. Accordingly, petitioner No.2 in W.P.

(S)No.5651/2021 also submitted his application and voluntarily

participated in the said recruitment process, therefore, petitioner No.2

having participated in the recruitment process and at the same time

has laid challenge to the terms and conditions of the said recruitment

process, cannot be permitted to approbate and reprobate at the same

time. It is the case of the respondents that conduct of petitioner No.2

demonstrates that he has taken a calculated chance by participating in

the recruitment process having submitted application and at the same

time having preferred the instant writ petition challenging the very

conditions of the recruitment process under which he has participated.

It is also the case of the respondents that petitioner No.2 has not

disclosed the said fact that he has participated in the said recruitment

process, as such, he is guilty of suppression of material facts and the

writ petition preferred by petitioner No.2 is liable to be dismissed, as

he has not approached this Court with clean hands. It has further

been pleaded that Rule 6 of the Rules of 2013 prescribes method of

recruitment and as stated under the Rules, recruitment to the service

shall be done by direct recruitment through selection. The selection

further has to be done by way of a competitive examination and / or by

way of an interview and method of recruitment to be adopted for the

purpose of filling of the vacancies has to be determined by the

Government on each occasion. It has also been pleaded that

selection can be done either by way of a competitive examination and

interview or by way of an interview in normal circumstances, and

conducting competitive examination is not mandatory in every

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situation. It has also been pleaded that in order to reduce the

possibility of arbitrariness, the State Government has passed order

dated 13-10-2021 (Annexure R-1) by which the State Government has

specifically laid down the criteria for award of marks by the Interview

Committee for which five different heads have been setup namely,

1. Educational Qualification 40%

2. Knowledge of National Programmes 15%

3. Knowledge of Public Health Subjects 15%

4. Experience of working in Government institutions 25%

5. Personality 5%

5. It has also been pleaded that the above-stated disintegration of heads

under which marks are to be awarded to the candidates by the

Interview Committee clearly demonstrate that there is apparent

objectivity with which the marks are to be awarded by the Interview

Committee and there is bound to be absolute transparency in the

modality adopted by the respondents for making suitable selection. As

such, there is no element of arbitrariness which can step in while

making the said selection. Accordingly, interview has been scheduled

by constituting 10 to 15 Boards. It has also been submitted that

appointments to the post of Medical Officer are of acute urgency

considering the onslaught of COVID-19 pandemic and the periodic

fluctuations with which the spike in number of patients have been

witnessed till now. As such, the recruitment process being in

accordance with the Rules of 2013, both the writ petitions are liable to

be dismissed. Short rejoinder has been filed by the petitioners after

conclusion of hearing of the writ petitions.

6. Mr. C. Jayant K. Rao, learned counsel appearing for the petitioners in

both the writ petitions, would submit that appointment on the post of

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Medical Officer has to be conducted in accordance with the Rules of

2013 and Rule 6(1) of the Rules of 2013 is mandatory and selection

has to be done by competitive examination and interview, it cannot be

by way of interview alone which is apparent from Rule 11(1) of the

Rules of 2013 which states that the examination for recruitment to the

service shall be conducted at such intervals, as the Government may

determine, from time to time. He would further submit that award of

100 marks by way of interview is arbitrary in view of the decision

rendered by the Supreme Court in the matter of Ajay Hasia v. Khalid

Mujib Sehravardi1 as well as Ashok Kumar Yadav and others v. State

of Haryana and others2 and Syed T.A. Naqshbandi and others v. State

of Jammu & Kashmir and others3. Therefore, the recruitment notice

subsequently issued dated 20-9-2021 be quashed being contrary to

the Rules of 2013.

7. Mr. Amrito Das, learned Additional Advocate General, assisted by Mr.

Jitendra Pali, learned Deputy Advocate General, appearing for the

State / respondents, would submit that under Rule 6 of the Rules of

2013, direct recruitment can be made through a selection process

comprising of (a) competitive examination and interview; or (b)

competitive examination only; or (c) interview only, and / or provides

for alternative modes of selection to be decided upon by the State

Government. Interview alone is one of the modes of selection

provided for under the statutory Rules of 2013 which have been

framed by the competent authority in exercise of the powers conferred

by the proviso to Article 309 of the Constitution of India. He would

further submit that strict interpretation to the provision of Rule 6 of the

1 (1981) 1 SCC 7222 (1985) 4 SCC 4173 (2003) 9 SCC 592

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Rules of 2013 has to be made as is contained under the Rules of

2013. Stroke (‘/’) employed in between “and – or” provides for an

option in the alternative to the State Government to choose as

between the modes of selection contained under Rule 6. Stroke (‘/’)

cannot be read as ‘and’. As such, the selection process which is

being conducted only by way of interview read with order dated 13-10-

2021 cannot be taken exception to by the petitioners. Mr. Das,

learned Additional Advocate General, would rely upon the decision of

the Orissa High Court in the matter of Rohit Chauhan v. Chairman,

Admission Sub-Committee, Joint Entrance Examination E & M-2000,

University College of Engineering, Sambalpur4 followed by the

Madhya Pradesh High Court in the matter of Rasal Singh v. Election

Commission of India and others5 to buttress his submissions. Mr.

Das, learned Additional Advocate General, would further submit that

selection process which is being conducted by way of interview read

with order dated 13-10-2021 for the post of Medical Officer is in

accordance with law, as the State Government has laid down a criteria

for award of marks and there are five different heads for award of

marks in which 40 marks out of 100 have been prescribed for

educational qualification, 25 marks have been prescribed for work

experience in government institutions, 15 marks each for knowledge

of National Programmes and knowledge of Public Health subjects and

5 marks on personality. As such, there is apparent objectivity with

which marks are to be awarded by the Interview Committee and there

is absolute transparency in the modalities adopted by the respondents

for making selection on the post of Medical Officer. Mr. Das, learned

4 AIR 2001 Ori 1255 2015(1) M.P.L.J. 160

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Additional Advocate General, would also submit that interview alone

has been judicially recognised as a mode of selection for appointment

to government service. He would further rely upon the decisions of

the Supreme Court in the matters of Lila Dhar v. State of Rajasthan

and others6, Mehmood Alam Tariq v. State of Rajasthan7, D.V. Bakshi

and others etc. etc. v. Union of India and others8, Anzar Ahmad v.

State of Bihar9 and Kiran Gupta and others v. State of U.P. and

others10 in support of his contention. Therefore, the writ petitions

deserve to be dismissed.

8. I have heard learned counsel for the parties and considered their rival

submissions made herein-above and also went through the record

with utmost circumspection.

9. In exercise of the powers conferred by the proviso to Article 309 of the

Constitution of India, the Governor of Chhattisgarh made the Rules of

2013 which govern recruitment / appointment to the post of Medical

Officer. Rule 6 of the Rules of 2013 provides method of recruitment.

Rule 7 provides appointment to the service. Rule 8 provides

conditions of eligibility for direct recruitment. Rule 11 provides direct

recruitment by competitive examination and / or interview. For the

sake of convenience, Rules 6 and 7 are being reproduced herein-

below:

“6. Method of Recruitment.-(1) Recruitment to the service,after the commencement of these rules, shall be made bydirect recruitment through selection (competitiveexamination and/or interview).

6 (1981) 4 SCC 1597 (1988) 3 SCC 2418 AIR 1993 SC 23749 (1994) 1 SCC 15010 (2000) 7 SCC 719

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(2) Subject to the provisions of these rules, the method ormethods of recruitment to be adopted for the purposes offilling any particular post or posts in the service, as may berequired to be filled during any particular period ofrecruitment, and the number of persons to be recruited byeach method, shall be determined on each occasion by theGovernment.

(3) Notwithstanding anything contained in sub-rule (1), if inthe opinion of the Government, the exigencies of theservice so require, the Government may adopt suchmethod of recruitment to the service, other than thosespecified in the said sub-rule, as it may, by order issued inthis behalf, prescribe.

(4) At the time of recruitment provisions of the ChhattisgarhLok Sewa (Anusuchit Jation, Anusuchit Janjation Aur AnyaPichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994 anddirections (as amended) issued from time to time, by theGeneral Administration Department of the Government,shall be applicable.

7. Appointment to the Service.-All appointments to theservice after the commencement of these rules shall bemade by the Government and no such appointment shallbe made except after selection by the method ofrecruitment specified in rule 6.”

10. It is the case of the petitioners that the post of Medical Officer is a

Class-II post and related to public health and therefore holding of

competitive examination / written examination is a must and it cannot

be conducted through interview only. Whereas, it is the case of the

respondents / State that Rule 6(1) of the Rules of 2013 envisages that

recruitment to the service can be made by direct recruitment through

selection (competitive examination and/or interview) and Rule 6

provides alternative modes of selection to be decided upon by the

State Government and the State Government has decided the

selection to be conducted through interview which is apparent from

order dated 13-10-2021 keeping in view that doctors are the matured

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persons and therefore the post of Medical Officers can be filled up

through interview only.

11. A focused glance of Rule 6 of the Rules of 2013 shows that it provides

method of recruitment. Rule 6(1) provides that recruitment to the

service, after the commencement of these rules, shall be made by

direct recruitment through selection (competitive examination and/or

interview). “Selection” means, the person selected for the post must

be of “merit”.

12. In Rule 6(1) of the Rules of 2013, the expression “competitive

examination and/or interview” has been employed by the rule making

authority. In between “competitive examination – interview”, the

expression “and/or” has been used. Stroke (‘/’) is commonly used as

the word substitute “or” which indicates the choice, for example male

or female he or she. As such, the two expressions “and” and “or” are

by-parted by “/”, therefore, they are mutually exclusive and alternative

to each other.

13.The dictionary meaning of stroke (‘/’) is as follows:

Cambridge International Dictionary of English, (CambridgeLow price Editions)

“Oblique (Stroke) (C) Br and Aus.

An oblique (also slash or specialised solidus is a slopingline often used for separating numbers or words: Fractionscan be written with oblique strokes, for example 2/3. Everystudent must hand in her/his (= her or his) completedapplication form by the end of the week.”

Chambers 21 st Century Dictionary – 1997 Reprint publishedby Allied Chambers (India) Ltd.,–

“An oblique” Indicates alternatives – Bring your swimmingcostume and/or a tennis racquet – Tea/Coffee will be

W.P.(S)Nos.1291/2021 & 5651/2021

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served – Dear Sir/Madam Each candidate will be requiredto give a report on his/her research.”

14.Similarly, in 6th Edition of Oxford English Mini Dictionary, the stroke (‘/’)

express as a slanting line / used between alternative. Thus, according

to the dictionary meaning of stroke (‘/’), it indicates alternatives /

choices. As such, stroke (‘/’) between the words “and” and “or”

combining the words “written examination – interview” provides for an

option or an alternative mode of recruitment to the post of Medical

Officer and as such, it is for the State Government to choose option as

between the modes of selection and the selection process can

comprise of three methods namely, (a) competitive examination and

interview; or (b) only competitive examination; or (c) only interview.

The stroke (‘/’) used between “and” and “or” combining the words

“competitive examination and interview” cannot read as “and”.

Furthermore, the stroke (‘/’) in between the words “and” and “or”

cannot be taken as “and”, it always means alternatives and reading

the stroke (‘/’) as “and” would amount to rendering stroke (‘/’) as otiose

and would amount to rewriting the statutory Rule 6(1) of the Rules of

2013, which gives the competent authority a choice qua the method of

recruitment and to select either of the methods of recruitment amongst

the three available methods for such recruitment.

15.The Supreme Court in the matter of Ashish Kumar v. State of Uttar

Pradesh and others11 while dealing with interpretation and eligibility

criteria/conditions for the post of Psychologist in the advertisement

which provided “Graduation in Psychology/LT/BT/BEd in subject of

Psychology” as eligibility criterion, held that use of stroke between

graduate and LT/BT/BEd indicates that all were alternate qualifications

11 (2018) 3 SCC 55

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and cannot be read to mean graduate in Psychology with LT/BT/BEd

as held by the High Court and set aside the decision of the High

Court. It has been observed by their Lordships of the Supreme Court

in paragraphs 16, 19 and 21 as under: -

“16. The careful reading of original advertisement which isin vernacular language indicate that what was prescribedwas, “In Psychology subject graduate/LT/BT/BEd”. Use ofstroke between graduate and LT/BT/Bed indicates that allwere alternate qualifications. The advertisement cannot beread to mean providing for graduate in Psychology with LT/BT/Bed as has been read by the High Court and contendedby the respondent.

19. … The advertisement Annexure A - 1 containsqualifications for various posts and in several qualificationsstroke (/) has been used. A look into those qualificationsclearly indicate that stroke (/) was used in the otherqualifications denoting one or either qualification.

21. A perusal of the above qualifications clearly indicatedthat stroke (/) was used regarding qualifications, in thealternative i.e. one or either. In the above view of thematter, we are of the view that the use of stroke (/) betweenGraduate/LT/BT/BEd were in the same line meaningthereby one or either. It is relevant to notice that before theaforesaid qualifications, the words “in Psychology subject”has been used as prefix, which clearly means that all thealternative qualifications were required to have withPsychology subject i.e. graduation with Psychology/LT/BT/BEd in the subject of Psychology. Hence, all the three i.e.graduation, LT/BT/BEd has to be in Psychology subject.Those persons who have done LT/BT/BEd withPsychology subject are eligible like person graduated withPsychology, which is the plain and simple meaning of theadvertisement which has been missed by the State as wellas the High Court.”

16.Reverting to the facts of the case in the light of the aforesaid analysis

and in the light of the interpretative meaning to stroke (‘/’) given by

their Lordships of the Supreme Court in Ashish Kumar (supra), Rule

6(1) of the Rules of 2013 gives three alternative methods of

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recruitment as indicated herein-above and interview is one amongst

them for recruitment on the post of Medical Officer and holding of

competitive examination for recruitment and appointment to the post

of Medical Officer is not necessary, it may be only by interview by

virtue of Rule 6(1) of the Rules of 2013 which gives option to the State

Government and which is further fortified by Rule 7 of the Rules of

2013 which prescribes that all appointments to the service after the

commencement of the Rules of 2013 shall be made by the

Government and no such appointment shall be made except after

selection by the method of recruitment specified in Rule 6.

17.The Supreme Court in Lila Dhar (supra) had already held that

recruitment to public services is regulated by rules made under the

proviso to Article 309 of the Constitution and the courts would not

usurp a function which is not vested in them by redetermining the

appropriate method of selection and the relative weight to be attached

to the various tests, otherwise, it would amount to re-writing the rules,

as such, the method of recruitment selected by the competent

authority can only be by way of interview and scope of interference is

extremely limited. It has been observed by their Lordships in Lila Dhar

(supra) as under: -

“9. … Ordinarily recruitment to public services isregulated by rules made under the proviso to Article 309 ofthe Constitution and we would be usurping a function whichis not ours, if we try to redetermine the appropriate methodof selection and the relative weight to be attached to thevarious tests. If we do that we would be re-writing the rulesbut we guard ourselves against being understood as sayingthat we would not interfere even in cases of proven orobvious oblique motive. ...”

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18.Faced with this situation, Mr. Rao, learned counsel for the petitioners,

would invite my attention to Rule 11 of the Rules of 2013 which

provides Direct Recruitment by Competitive Examination and / or

Interview. Rule 11(1) provides that the examination for recruitment to

the service shall be conducted at such intervals, as the Government

may determine, from time to time. Rule 11(1) would be applicable in

case where the State Government decides to recruit Medical Officers

through competitive examination, it would not be applicable in a case

where the decision has been taken by the State Government to

conduct selection process through interview. Therefore, the

submission of learned counsel for the petitioners in this behalf that

recruitment and appointment on the post of Medical Officer without

holding written examination is illegal, is liable to be and is hereby

rejected.

19.The next submission of Mr. Rao, learned counsel for the petitioners, is

that 100% marks have been reserved for viva voce, which would

enhance the chances of arbitrariness in awarding marks while

selecting Medical Officers, as such it would run contrary to the

principles of law laid down by the Supreme Court in Ajay Hasia

(supra), Ashok Kumar Yadav (supra), Minor A. Peeriakaruppan v.

State of Tamil Nadu and others12 and therefore the recruitment in

question is ex facie arbitrary and it is liable to be quashed.

20.The question for consideration would be, whether such an award of

marks for interview / viva voce is permissible and in accordance with

law? Before considering the argument so advanced, it would be

12 1971 (1) SCC 38

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appropriate to notice the principle of law laid down by their Lordships

of the Supreme Court in the above-mentioned judgments.

21. In Ajay Hasia (supra), the Supreme Court held that selection by oral

interview in addition to written test is valid, but allocation of above 15

per cent of total marks for interview is arbitrary and unreasonable.

22.Similarly, in Minor A. Peeriakaruppan (supra), their Lordships of the

Supreme Court have frowned upon prescribing higher percentage of

marks for interview, when selection is on the basis of oral interview

and written test.

23. In Ashok Kumar Yadav (supra), selection for the Haryana Civil

Services (Executive Branch) and other Allied Services was made on

the basis of written examination and interview. The Supreme Court

after placing reliance in Lila Dhar (supra) observed as under: -

“23. … The competitive examination may be basedexclusively on written examination or it may be basedexclusively on oral interview or it may be a mixture of both.It is entirely for the Government to decide what kind ofcompetitive examination would be appropriate in a givencase. … It is not for the Court to lay down whetherinterview test should be held at all or how many marksshould be allowed for the interview test. Of course themarks must be minimal so as to avoid charges ofarbitrariness, but not necessarily always. There may beposts and appointments where the only proper method ofselection may be by a viva voce test. ...”

24.However, at this stage, it would be appropriate to refer to the judgment

of the Supreme Court in Lila Dhar (supra). In that case, the impugned

selection for the posts of District Munsifs under the Rajasthan Judicial

Service was made by the Rajasthan Public Service Commission. The

ratio of marks allocated for written test and interview was 75:25. Their

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Lordships while distinguishing the decisions in Ajay Hasia (supra) and

Minor A. Peeriakaruppan (supra) held as under: -

“6. … In the case of admission to a college, forinstance, where the candidate's personality is yet todevelop and it is too early to identify the personal qualitiesfor which greater importance may have to be attached inlater life, greater weight has per force to be given toperformance in the written examination. The importance tobe attached to the interview-test must be minimal. Thatwas what was decided by this Court in Periakaruppan v.State of Tamil Nadu, Ajay Hasia v. Khalid Mujib Sehravardi,and other cases. On the other hand, in the case ofservices to which recruitment has necessarily to be madefrom persons of mature personality, interview test may bethe only way, subject to basic and essential academic andprofessional requirements being satisfied.”

25.Their Lordships in Lila Dhar (supra) also held that consideration for

determining the percentage of marks allotted for interview in case of

admission to the academic institution cannot guide recruitment to the

public service and also held that a written examination assesses a

candidate's knowledge and intellectual ability, whereas an interview

test is valuable to assess a candidate’s overall intellectual and

personal qualities. It has been observed in paragraphs 5 and 6 of the

report as under: -

“5. … It is now well recognised that while a writtenexamination assesses a candidate's knowledge andintellectual ability, an interview-test is valuable to assess acandidate's overall intellectual and personal qualities.While a written examination has certain distinct advantagesover the interview-test there are yet no written tests whichcan evaluate a candidate's initiative, alertness,resourcefulness, dependableness, cooperativeness,capacity for clear and logical presentation, effectiveness indiscussion, effectiveness in meeting and dealing withothers, adaptability, judgment, ability to make decision,ability to lead, intellectual and moral integrity. Some ofthese qualities may be evaluated, perhaps with some

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degree of error, by an interview-test, much depending onthe constitution of the Interview Board. ...

6. Thus, the written examination assesses the man'sintellect and the interview test the man himself and "thetwain shall meet" for a proper selection. If both writtenexamination and interview test are to be essential featuresof proper selection, the question may arise as to the weightto be attached respectively to them. In the case ofadmission to a college, for instance, where the candidate'spersonality is yet to develop and it is too early to identifythe personal qualities for which greater importance mayhave to be attached in later life, greater weight has perforce to be given to performance in the written examination.The importance to be attached to the interview-test must beminimal. That was what was decided by this Court inPeriakaruppan v. State of Tamil Nadu, Ajay Hasia v. KhalidMujib Sehravardi1 ,and other cases. On the other hand, inthe case of services to which recruitment has necessarily tobe made from persons of mature personality, interview testmay be the only way, subject to basic and essentialacademic and professional requirements being satisfied.To subject such persons to a written examination may yieldunfruitful and negative results, apart from its being an act ofcruelty to those persons. There are, of course, manyservices to which recruitment is made from youngercandidates whose personalities are on the threshold ofdevelopment and who show signs of great promise, andthe discerning may in an interview-test, catch a glimpse ofthe future personality. In the case of such services, wheresound selection must combine academic ability withpersonality promise, some weight has to be given, thoughnot much too great a weight, to the interview-test. Therecannot be any rule of thumb regarding the precise weight tobe given. It must vary from service to service according tothe requirements of the service, the minimum qualificationsprescribed, the age group from which the selection is to bemade, the body to which the task of holding the interview-test is proposed to be entrusted and a host of other factors.It is a matter for determination by experts. It is a matter forresearch. It is not for courts to pronounce upon it unlessexaggerated weight has been given with proven or obviousoblique motives. The Kothari Committee also suggestedthat in view of the obvious importance of the subject, it maybe examined in detail by the Research Unit of the UnionPublic Service Commission.”

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Their Lordships also held that mode of awarding marks in interview-

test is an administrative function which the courts should not interfere

and observed in paragraph 8 as under: -

“8. The second ground of attack must fail for the samereason as the first ground of attack. The Rules themselvesdo not provide for the allocation of marks under differentheads at the interview-test. The criteria for the interview-test has been laid down by the Rules. lt is for theinterviewing body to take general decision whether toallocate marks under different heads or to award marks in asingle lot. The award of marks under different heads maylead to a distorted picture of the candidate on occasions.On the other hand the totality of the impression created bythe candidate on the interviewing body may give a moreaccurate picture of the candidate's personality. It is for theinterviewing body to choose the appropriate method ofmarking at the selection to each service. There cannot beany magic formulae in these matters and courts cannot sitin judgment over the methods of marking employed byinterviewing bodies unless, as we said, it is proven orobvious that the method of marking was chosen withoblique motive.”

26. In the matter of Shri Janki Prasad Parimoo and others v. State of

Jammu and Kashmir and others13 (Constitution Bench) challenge was

against selection for the posts of Headmasters made by the Selection

Committee on the basis of interview. While approving the method of

selection by interview, it was held by their Lordships of the Supreme

Court that when appointment to higher posts was made, it might be

perfectly justified to test the candidate at a properly conducted

interview.

27. In the matter of Dr Keshav Ram Pal, Reader and Head of Sanskrit

Department and Offg. Principal, Lajpat Rai Post-Graduate College,

Sahibabad, Distt. Ghaziabad, U.P. v. U.P. Higher Education Services

13 (1973) 1 SCC 420

W.P.(S)Nos.1291/2021 & 5651/2021

Page 19 of 25

Commission, Allahabad and others14, the Supreme Court considered

the decisions rendered by it earlier in Minor A. Periakaruppan (supra)

and Ajay Hasia (supra) and held that in the case of services to which

recruitment has necessarily to be made from persons of mature

personality, interview test may be the only way, subject to basic and

essential academic and professional requirements being satisfied and

to subject such persons to a written examination may yield unfruitful

and negative results, apart from it being an act of cruelty to these

persons.

28.The Supreme Court in Anzar Ahmad (supra) held that different

considerations apply for determining the weightage to be given in viva

voce examination for selection in public employment and admission to

an educational institution. It was held as under: -

“8. … In this context it may be mentioned that thedecisions of this Court with regard to the fixation of marksfor interview in a selection broadly fall in two categories:

(i) Selection for admission to educational institutions; and

(ii) selection for employment in service.”

29. In Anzar Ahmad (supra), their Lordships of the Supreme Court while

dealing with appointments made by the Public Service Commission for

the posts of Unani Medical Officer only on the basis of interview,

wherein the Public Service Commission has prescribed 50% marks for

viva voce and 50% marks for academic performance, upheld the said

selection by observing in paragraph 20 as under: -

“20. In the instant case, we find that the StateGovernment in its letter dated September 20, 1990 hasclearly stated that selection should be made on the basis ofinterview. On the basis of this letter the Commission could

14 (1986) 1 SCC 671

W.P.(S)Nos.1291/2021 & 5651/2021

Page 20 of 25

have made the selection wholly on the basis of marksobtained at the interview. But in accordance with the pastpractice, the Commission has made the selection on thebasis of interview while keeping in view the academicperformance and with that end in view the Commission hasallocated 50% marks for academic performance and 50%marks for interview. It cannot be held that the saidprocedure adopted by the Commission suffers from thevice of arbitrariness. By giving equal weight to academicperformance the Commission has rather reduced thepossibility of arbitrariness.”

30.Similarly, in the matter of Siya Ram v. Union of India and others15,

selection for the post of Chief Personnel Inspector in Railways was

challenged on the ground that selection was permitted only through

oral test in the form of viva voce and no written examination was held

in which 50% marks were allotted for professional ability without

prescribing any norms. While rejecting the contention, the Supreme

Court held that for certain posts, only interview was considered to be

the best method of selection.

31. In Kiran Gupta (supra), the Supreme Court has considered the

decision of Shri Janki Prasad Parimoo (supra) and observed in

paragraph 22 as under: -

“22. It is difficult to accept the omnibus contention thatselection on the basis of viva voce only is arbitrary andillegal and that since allocation of 15% marks for interviewwas held to be arbitrary by this Court, selections solelybased on interview is a fortiori illegal. It will be useful tobear in mind that there is no rule of thumb with regard toallotment of percentage of marks for interview. It dependson several factors and the question of permissiblepercentage of marks for an interview-test has to be decidedon the facts of each case. However, the decisions of thisCourt with regard to reasonableness of percentage ofmarks allotted for interview in cases of admission toeducational institutions/schools will not afford a properguidance in determining the permissible percentage of

15 (1998) 2 SCC 566

W.P.(S)Nos.1291/2021 & 5651/2021

Page 21 of 25

marks for interview in cases of selection/appointment to theposts in various services. Even in this class, there may betwo categories: (i) when the selection is by both a writtentest and viva voce; and (ii) by viva voce alone. The courtshave frowned upon prescribing higher percentage of marksfor interview when selection is on the basis of both oralinterview and a written test. But, where oral interview alonehas been the criteria for selection/appointment/promotion toany posts in senior positions the question of higherpercentage of marks for interview does not arise.Therefore, we think it an exercise in futility to discuss thesecases – Minor A. Peeriakaruppan v. State of Tamil Nadu12

and Ajay Hasia v. Khalid Mujib Sehravardi1 – relied upon byMr Goswami, which deal with admission to educationalinstitutions/schools and also cases where prescribedmethod of recruitment was written test followed by aninterview – Ashok Kumar Yadav v. State of Haryana2; D.V.Bakshi v. Union of India8 and Krishan Yadav v. State ofHaryana16.

32. In the matter of Ram Avtar Patwari and others v. State of Haryana and

others17, the Supreme Court has followed the decisions in Anzar

Ahmad (supra) and Kiran Gupta (supra).

33.Lastly, in the matter of Manish Kumar Shahi v. State of Bihar and

others18, their Lordships of the Supreme Court following their earlier

decision in Lila Dhar (supra) and other decisions on the point, held

that prescribing of higher percentage of marks for viva voce test /

interview for recruitment to judicial services, administrative services

and the like, suffers from no constitutional infirmity.

34.Coming to the facts of the case in the light of the principles of law laid

down by their Lordships of the Supreme Court in the above-noticed

judgments, it is quite vivid that the Supreme Court has clearly held

that interview alone is also a recognised mode of selection for public

services, particularly when it relates to higher posts and the criteria

16 (1994) 4 SCC 16517 (2007) 10 SCC 9418 (2010) 12 SCC 576

W.P.(S)Nos.1291/2021 & 5651/2021

Page 22 of 25

applicable for admission in the educational institutions would not be

applicable for selection and appointment to public services. In the

instant case, different heads for awarding of marks in interview have

already been indicated by order dated 13-10-2021 in which 40%

marks have been provided for educational qualification, 15% for

knowledge of National Programmes, 15% for knowledge of Public

Health subjects, 25% for experience of working in government

institutions and 5% for personality have been prescribed. Paragraph 3

of order dated 13-10-2021 states as follows:-

3/ ससाकसात्कसार कक ननिररर्साररिर 100 अअंकको कसा ननवभसाजि ननि्िसािनससार ननककसा जसाककय-

01 शशैकननणिक ककोग्क सा - 40 पनन श 02 रसाषष षक कसाकरक्र कसा ञसाि - 15 पनन श 03 लकोक स्वसास्थ्क ननवषकयों कसा ञसाि - 15 पनन श 04 शसासककीक सअंस्थसाओअं ्रम कसाकर अिनभव - 25 पततिशत

05 वकननकत्व - 5 पनन श

35.Reverting finally to the facts of the case in the light of the principles of

law laid down by their Lordships of the Supreme Court, it is quite vivid

that in respect of selection for public employment different yardstick/

considerations would apply for determining the weightage to be given

to viva voce examination and the yardstick applicable for selection for

admission to educational institutions would not apply. In the instant

case, the State Government is recruiting Medical Officers, which have

to be selected from amongst the qualified doctors / matured persons

and the State Government in its wisdom has decided to select Medical

Officers only by way of interview, exclusively, for which 100% marks

have been divided in five different heads such as educational

qualification, knowledge of National Programmes, knowledge of Public

W.P.(S)Nos.1291/2021 & 5651/2021

Page 23 of 25

Health Subjects, experience of working in Government institutions and

also on personality of the candidates / doctors. This method of

recruitment is one of the permissible and recognised modes of

recruitment under Rule 6(1) of the Rules of 2013 and it cannot be

dubbed as arbitrary and illegal, as such, challenge in this behalf is

liable to be rejected.

36.Petitioner No.2 in W.P.(S)No.5651/2021 had already participated in

the recruitment process without demur / protest and has taken a

calculated chance by appearing in the examination and after

participating in the recruitment process, he has challenged the

recruitment notice by way of this writ petition. It is well settled that a

candidate who participates in selection without demur taking a

calculated chance to get selected cannot turn around and challenge

the criteria of selection and constitution of Selection Committee (see

Madan Lal and others v. State of J & K and others19 followed by the

Supreme Court very recently in the matter of Ramjit Singh Kardam

and others v. Sanjeev Kumar and others20).

37. In view of the aforesaid legal discussion and legal analysis, this Court

is of the considered opinion that the challenge made to the recruitment

/ selection process for the post of Medical Officers being contrary to

Rule 6(1) of the Rules of 2013 and therefore recruitment to the post of

Medical Officers cannot be made on the basis of interview alone, is

liable to be rejected and is hereby rejected.

38.Consequently, as a fallout and consequence of the aforesaid

discussion, both the writ petitions deserve to be dismissed and are

hereby dismissed. The petitioners are saddled with cost of ₹ 25,000/-

19 (1995) 3 SCC 48620 AIR 2020 SC 2060

W.P.(S)Nos.1291/2021 & 5651/2021

Page 24 of 25

for unnecessarily delaying and protracting the recruitment process of

443 Medical Officers that too during the COVID-19 pandemic. Cost

shall be payable to the High Court Legal Services Committee.

Sd/- (Sanjay K. Agrawal)

JudgeSoma

W.P.(S)Nos.1291/2021 & 5651/2021

Page 25 of 25

HIGH COURT OF CHHATTISGARH, BILASPUR


Kamal Singh Rajput and others

Versus

State of Chhattisgarh and another

AND


Dr. Kamal Singh Rajput and another

Versus

State of Chhattisgarh and another

Head Note

Recruitment on the post of Medical Officer (Class-II) can be done by the

State Government only through oral interview by virtue of Rule 6(1) of the

Chhattisgarh Medical Officers (Gazetted) Service Recruitment Rules, 2013.

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8-2-2022 Order delivered on - High Court Chhattisgarh

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