JASWANT SINGH NERWAL ETC. v. STATE OF PUNJAB AND ORS. ETC

Citation: [1991] 1 S.C.R. 411

Court: Supreme Court of India

Bench: M.M. PUNCHHI, K. RAMASWAMY

Case summary

The challenge thus was to the Commission having allowed substitution of the preference. 1860 of 1975 was made by Nerwal against Bansal for the latter having been allowed in the meantime substituted preference for the posts to the ones given in the first instance in his...

Judgment text

The Judgment of the Court was delivered by PUNCHHI, J. These two allied appeals arising from a common judgment of the Punjab and Haryana High Court at Chandigarh, in -f Civil Writ Petitions Nos. 1172 of 1974 and 1860 of 1975, on grant of special leave, can appropriately be disposed of by a common . judgment. In order to recruit 71 officers in the Punjab Civil Services (Executive Branch) and Allied services, the Punjab Public Service Commissfon, at the behest of the State of Punjab, held a competitive examination in December, 1972. As advertised 12 vacancies were for the Punjab Civil Services and the remaining for Allied Services. The applying candidates as per the requirement of the Punjab Civil Service (Executive Branch) Rules, 1930 (for short the Rules) specified the 'lo... ,J posts in order of preference in their respective applications. The result ,,,,---of those who. were declared qualified was published in the daily Tribune dated September 21, 1973.

Out of the 71 candidates declared successful Shri V. M. Bansal, the appellant in Civil Appeal No. 833 of 1977 was declared successful for a post in the Punjab Civil Service and Shri Jaswant Singh Nerwal, the appellant in Civil Appeal No. 334 of 1978 for the post of Tehsildar in the Allied services. Some of the unsuccessful candidates challenged this selection in its entirety on . _____ various grounds before the High Court through Civil Writ Petition - No. 1722 of 1974. On the other hand challenge in Civil Writ Petition No. 1860 of 1975 was made by Nerwal against Bansal for the latter having been allowed in the meantime substituted preference for the posts to the ones given in the first instance in his application, and which le9. to his becoming a Punjab Civil . Services Officer and Nerwal to be a Tehsildar, in the Allied services and had the substitution not been allowed the position would have been that Nerwal would have )... , been in the P. C. S.

and Bansal an Excise & Taxation Officer. The challenge thus was to the Commission having allowed substitution of the preference. The High Court negatived the challenge ofNerwal and his claim to be declared successful to a post in the Punjab Civil Service JASWANT SINGH v. STAIB OF PUNJAB [PUNCHHI, J. ] 415 in preference to Bansal and thus dismissed Civil Writ Petition No. 1860 of 1975. Simultaneously Writ Petition No. 1172 of 1974 preferred by the unsuccessful candidates was allowed in part inasmuch as the selection of Bansal as a Punjab Civil Service Officer and his consequential appointment was quashed. The High Court, however, did not disturb the selection of the remaining 70 successful candidates but required Bansal to compete again by issuing the following direction: "However, he is entitled to compete with the other unsuccessful candidates for securing place in the merit and we, therefore, direct that Shri V. M. Bansal (respondent no.

8) along with the other unsuccessful candidates be again interviewed by the members of the Commission except Shri J. R. Bansal (respondent no. 4) and whosoever is selected on merits shall have to be appointed against the post for which he is selected in accordance with the Rules. We may, however, observe that if Shri J. R. Bansal (respondent no. 8) is again selected on merits, he will be entitled to his original seniority and all other benefits ofthe Service which he would have enjoyed had his selection not been quashed. If in any case, no candidate is selected against the post of P. C. S. Cadre in accordance with the Rules, any of the other selected candidates may then make representation to the Government for being appointed to the post of P. C. S. in accordance with the Rules. " Bansal is here before us to have the aforesaid direction quashed and Nerwal to have the place of Bansal as a Punjab Civil Service Officer.

We heard learned counsel for the respective parties on every aspect of the case at great length. The High Court was goaded to issue the above direction regulating selection between Bansal and other unsuccessful candidates, as also the consequence thereof, on applying the decision of this Court in A. K. Kraipak & Ors. etc. v. Union of India & Ors. , [1970] 1SCC457 to neutralise Bansal's father Shri J. R. Bansal being a member of the Public service Commission. And even though he had not participated in the deliberations of the Commission, when Bansal had been interviewed, his brooding presence was held negatively to have influenced the selection and the possible ouster of a possibly successful candidate'. Kraipak's case was one where one of the persons, who sat as a member of the selection board, was himself, one of the persons to be considered for selection. He participated in the deliberations of the selection board when the claims of his rivals were considered.

He participated in the decisions relating to the preference in seniority. He participated at every stage in the deliberations of the selection board where there was conflict between his interest and duty. In such set of facts this Court unhesitatingly came to the conclusion that there was a reasonable likelihood of bias and therefore the principles of natural justice had got violated. But this Court in Javid Rasool Bhat & Ors. v. State of Jammu & Kashmir & Ors. , (1984] 2 SCC 631 did not vitiate the selection of a candidate to admission in a medical college on the ground of presence in the selection board of the father of one of the candidates. In this case, the Principal of Medical College, Srinagar whose daughter was a candidate for admission to the Medical College informed the Selection Committee at the very outset about this fact and told them that he would not have anything to do with a written test and would not be present when his daughter would be interviewed.

The other members of the Selection Committee agreed to the proposal. The procedure adopted by the Selection Committee and the members concerned was in accord with the generally accepted and well known procedure adopted by the Public Service Commissions every where in the country, as it was not unusual for candidates related to members of the Service Commission and selection Committees to seek employment. In such a situation the practice generally in vogue is for the member concerned to excuse himself when the particular candiate is interviewed and such a selection is beyond challenge, unless, of course, mala fide. See this Court's decision in S. N. Nagara- ;an & Ors. v. State ofMysore & Ors. , [1966) 3 SCR 682, also. Then we have the momentous decision of this Court in Ashok Kumar Yadav and Ors. etc. etc. v. State of llaryana & Ors. etc. etc. , [1985) (Supp.

) SCR 657 which without whittling down the salutary principle evolved in Kraipak's case (supra) has put the Public Service _ Commissions, being creatures of the Constitution, at a higher pedestal. At pages 686-87, it was ruled as follows: "But the situation here is a little different because the selection of candidates to the Haryana Civil Service (Executive) and allied services is being made not by any Selection Committee constituted for that purpose but it is being done by the Haryana Public Service Commission which is a Commission set up under Article 316 of the Constitution. It is a Commission which consists of a Chairman and a specified number of members and is a Constitutional Authority.

We do not think that the princi- pie which requires that a member of a selection committee whose close relative is appearing for selection should decline to become a member of the selection committee or withdraw from it leaving it to the appointing authority to nominate another person in his place, need be applied in case of a Constitutional Authority like the Public Service Commission, whether Central or State. If a member of a 8 Public Service Commission were to withdraw altogether from the selection process on the ground that a close relative of his is appearing for selection, no other person save a member can be substituted in his place. And it may sometimes happen that no other member is available to take the place of such member and the functioning of the Public ·+-· Service Commission may be affected. When two or more members of a Public Service Commission are holding a viva voce examination they are functioning not as individuals but as the Public Service Commission.

Of course, we must make it clear that when a close relative of a member of a Public Service Commission is appearing for interview, such member must withdraw from participation in the interview of that candidate and must not take part in any discussion ·in regard to the merits of that candidate and even the marks or credits given to that candidate should not be disclosed to him. " It was the admitted case before the High Court that Bansal's father did participate in the deliberations of the Commission when the viva voce test of other candidates appearing before the Commission - had been taken and he had accordingly awarded marks to the candidates otherwise competing with his own son. The High Court has still deduced that inspite of the afore-suggested bias the candidates who ___. \ got selected against the posts (except his son) got their due un-biased ~ -and therefore their selection cannot be questioned.

Taking this deduction to be correct, the High Court before issuing the direction under challenge, had further to find that there was bias in excluding the unsuccessful candidates. We do not find this to have engaged the attention of the High Court. It is noticeable that besides Bansal's father there were four other members of the Public Service Commission and who had functioned as a Commission. As is evident there was a long list of as many 540 candidates to be interviewed and the interviews went on from 24-9-1973 uptill 30-10-1973. In the nature of things, there was no material before the High Court, and none has been pointed to us, from which it could be concluded that the members of the commission could keep track of the comparatives of each of those 540 candidates. so as to manipulate a favourable result to Bansal.

We have not been shown any material to entertain the doubt that Bansal's father bei~g a member of the Public Service Commission, per-se had the effect of other members keeping track of comparatives in order to single out Bansal's as a successful candidate. And lastly there is not a word of mala fide suggested against the other members of the Public Service Commission, of having shared the supposed animus of Bansal's father. Thus, in the fac. ts and circumstances of this case, we do not find any reason to sustain the judgment of the High Court on this aspect of the case. Bansal's father did what was expected of him, in having declined to participate in the deliberations of the commission when Bansal went for the viva voce test. Our view in this regard is further strengthened by the manner in which the viva VOCI? test is conducted and which the High Court even has not disapproved.

It appears that out of a total of 825 marks, 625 marks have been allotted for written tests and the remaining 200 marks are for viva voce test. These viva-voce marks are distributed in various heads as enumerated by the High Court. What is significant is that each member individually gets 25 marks but on actual working, if one of them is not attending, the share of marks are divided in the present members. Further these marks are strictly not divided as 25 marks for each member but each member allots marks to each candidate out of 125 marks and these when added are divided by 5 or by the actual number of members present and participating in the interview. We may not be taken to be commending such a system of division of marks out of the allocated marks for the viva voce test but it seems this is the practice in which they are actually worked out.

Similarly the provision of 200 marks for viva voce test cannot meet our approval because of the percentage now authoritatively fixed in Ashok Kumar Yadav's case (supra). On these particulars and for these reasons no single member can possibly usurp to himself the total functioning of the commission and jealous as human nature is, no other member can be expe -- 1975 before the High Court, but without any order as to costs in both appeals. D. R. L. C. A. No. 334/78 dismissed C. A. No. 833/77 allowed. -