IMPORTANT POINT
Appointment - There is no hard and fast rules which could be applied to the viva voce test requiring the allocation of particular percentage of marks.

M.M. KUMAR, J.

1. This petition filed under Article 226 of the Constitution prays for issuance of a writ in the nature of mandamus directing the respondents to appoint the petitioner as Assistant Sub Inspector on the basis of his merit in the test held in the year 1990.

2. Brief facts of the case may first be noticed.

3. The petitioner has claimed that he has a brilliant academic record as he has obtained a degree in B.Com by obtaining 1st Class in April, 1988 from the Punjab University. Thereafter, he qualified M.A. Part I in the subject of Economics in April,1989. He has also narrated his various sports activities. In response to an Advertisement dated 12.8.1990 (Annexure P.3), the petitioner applied for appointment on the post of Assistant Sub Inspector of Police. He had passed the written test and was called for interview. He appeared for interview before the Departmental Selection Committee comprising of Inspector General of Police as its Chairman and other Deputy Inspector General of Police as member thereof. For the written test 100 marks were allocated and for viva voce 50 marks were assigned. After passing the written test by securing 58.30marks, the petitioner was subjected to viva voce and he secured 18.25 marks in the viva. Thus the total marks of the petitioner comes to 76.55. According to the record produced before me the last candidate at serial no.131 has secured 80.50 marks (57 in the written test plus 23.50 in the viva). The name of the petitioner, however, figured at serial No. 171 according to the record.

4. The stand of the respondents in the written statement is that is no illegality committed by them by allocating 100 marks for the written test and 50 marks for viva. According to the respondents, the same criterion for allocation of marks to the written test and viva has been followed in the earlier selection held in 1989 which has been upheld by a Division Bench of this Court in the case of Jai Pal Singh v. State of Punjab and ors (CWP No.1681 of 1989 decided on 30.1.1990).

5. It is pertinent to mention that the instant writ petition came up for consideration on an earlier occasion on 21.1.1992. A Division Bench of this Court has allowed the writ petition. However, the order passed by the Division Bench was set aside by Hon’ble the Supreme Court by observing that the judgement of the Supreme Court in the case of Sri Ashok Alias Somana Gowda and another v. State of Karnataka and others 1992(1) SCC 28 has been referred as a passing observation without any attempt to indicate the ratio which could be applied to the present case. It was further held by the Hon’ble Supreme Court that the judgement in the case of Sri Ashok (supra) was not at all applicable to the present case. The Division Bench judgement has been set aside vide order dated 13.1.1993 while remanding the case to this Court and treating the same as admitted. The observations of their Lordships in this regard read as under:

“It has been stated in the Special Leave Petition that the total marks obtained by the respondent at the test were 76.55 whereas the last candidate from the general category to be appointed as Assistant Sub-Inspector obtained 80.50 marks. The learned counsel for the appellant further stated that my other candidates, who failed to secure adequate marks for the purpose of selection, secured higher marks thanthe respondent and, since they have not been impleaded as parties in the writ petition, the writ petition is fit to be dismissed on that ground alone. The High Court having come to final decision in favour of the respondent without adverting to the merits of the other candidates, acted in error. Learned counsel for the respondent attempted to support the case of the respondent on some other grounds which have not been mentioned by the High Court. We at this stage cannot go into such arguments. We are of the view that the writ petition must be re-heard on merits by the High Court appeal and remit the case to the High