NEERAJ KANT Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) HEARD learned counsel for the parties. Brief facts of the case are that the Rajasthan Public Service Commission Advertised 19 posts of Legal Assistant. It is stated in the advertisement that number of vacancies can be increased or decreased and for that, no further advertisement will be issued. Ultimately, the number of vacancies was increased to 61. As per the procedure, the written tests were held on 5th and 6th December 1998. The petitioner No. 1 Neeraj Kant and petitioner No. 2 Balvinder Singh secured 81 and 82 marks respectively in the written tests. The petitioners were called for interview for personality test by Viva-voce examinations on 29. 4. 1999. In the interview both the petitioners secured 6 marks, whereas minimum marks required for declaring to have passed the selection test were 7. According to petitioners, though the petitioners secured much higher marks in written tests than the marks secured by candidates who were selected in written tests but were declared unselected only on the ground of securing merely one mark less than the minimum marks fixed in interview for personality test by Viva-voce examinations. The requirement of minimum marks in Viva-voce is provided in Rule 23 of the Rajasthan Legal (State and Subordinate) Services Rules, 1981. The petitioners have challenged the Rule 23 of the Rules of 1981, therefore, it will be relevant to quote here, which is as under:- " 23. Viva-voce :- Candidate who obtained such minimum qualifying marks in the written examinations as may be fixed by the Commission in their discretion shall be summoned by them for an interview for a personality test which shall carry "+20" marks. The Commission may in its discretion award grace marks up to one in each paper and up to three in, the aggregate. The Commission may fix minimum qualifying marks in the written examinations for the Scheduled Castes and the Scheduled Tribes candidates lower than what is prescribed for other candidates. The minimum qualifying marks in Viva-Voce shall be 35% for candidates other than those belonging to the Scheduled Castes and the scheduled Tribes and for the Scheduled Castes and the Scheduled Tribes it shall be 25%. The marks so awarded shall be added to the marks obtained in the written test by each candidate. The Scheduled Castes and the Scheduled Tribes candidates shall be paid both ways actual Railway fare of the lowest class by passenger train beyond 80 km in accordance with the orders of the Government to appear at the Viva-Voce. Other candidates shall appear in the Viva-Voce test at their own experience. "

(2.) ACCORDING to the learned counsel for the petitioners, provision like rule 23 of the Rules of 1981 is not there concerning any Subordinate Services government services in Rajasthan, except in Rajasthan Police Subordinate Service Rules 1989. It is also submitted by the learned counsel for petitioners, that in State Services, namely, Rajasthan Administrative Service Rules, 1954, Rajasthan Police Service and Rajasthan Forest Service Rules, such a provision is there. It is also submitted that, the personality test may be appropriate for giving appointment on certain post where the appointee is required to discharge the duties of administrative nature and have to deal with the public where personality, address and physique may have important role to play which may help appointee in discharging the duties of the post whereas the post of Legal Assistant is of such nature where personality test is irrelevant. Legal Assistants are posted in various departments of Government of Rajasthan for looking after the legal work in the particular department and tender advice to the departments in respect of the legal matters coming to it. The work is more or less one in which no direct contact with the public is there and it is entirely table work. Legal Assistant cannot appear in the court of law and their emoluments are more or less equivalent to those of Upper Division Clerks and the personality etc. has no role to play in the duties required to be discharged by Legal Assistants. It is also submitted that prescription of requirement of minimum marks in Viva-voce test makes Viva-voce a determining factor in the selection process. In any case marks obtained in Viva-voce alone cannot be made decisive factor for selection of the candidate.

(3.) ADVANCING argument further, learned counsel for the petitioners submitted that the legal assistant who need not to discharge any administrative functions nor they are required to come in contact with public directly and their work is more or less equivalent to work of U. D. C. only at the time of initial appointment, will acquire experience on the said post for further promotion, therefore, the viva-voce examination which is conducted for judging the personality and physique cannot be criteria, on the basis of which a person having knowledge in the subject can be excluded to accommodate a person having less merit in the subject.