Recently, the Bihar Public Service Commission (BPSC) released the final result for the 31st Bihar Judicial Services Competitive Examination. A total of 693 candidates who had qualified for the written exam were eligible to appear for the interview. Out of these, 688 appeared in the interview. A merit list was prepared based on the combined scores of the written exam and interview, and a total of 408 candidates appeared on the merit list. However, more than 250 candidates were disqualified on the basis of the interview, where the appearing candidate had to score a minimum of 35% in their interview. If anybody fails in this criteria, he will not be eligible for the final merit list. There have been instances where many students scored more than the final cutoff marks in their main examination but, still, their names couldn’t be reflected in the final merit list. Further, the constitutionality of these criteria has also been in conflict. This article aims to analyze the constitutionality of the selection process itself.
VIOLATION OF PART – III OF THE INDIAN CONSTITUTION.
Article 14 of the Indian Constitution deals with the ‘Right to Equality’. The said provision reads, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”. Supreme court in the judgment of E.P Royappa v. State of Tamil Nadu, has widened the scope, and a new concept of equality was introduced. Bhagwati J. delivered the judgment on behalf of himself, Chandrachud, and Krishna Iyer J.J introduced a new concept of equality. It was stated that equality is a dynamic concept with many aspects and dimensions, and it cannot be cribbed, cabined, and confined with traditional doctrinaire limits. Furthermore, equality is antithetis to arbitrariness. Equality and arbitrariness are sworn, enemies. In the present case, there is no information regarding Scoring criteria for the assessment of a candidate’s performance in the interview/viva-voce examination, which would otherwise have given the candidate an idea. It totally lies at the discretion of the interviewer as to how he allocates the marks. Supreme Court in the Judgment of Praveen Singh v. State of Punjab and Ors (2000 8 SCC 633) held that Requirements of not acting contrary to fair play, good conscience and equity is arbitrariness, and the same is not permissible. Furthermore, it is important to note that failure to disclose the criteria used to evaluate the candidates violates the Principle of natural justice principles and renders the entire interview/viva-voce evaluation process arbitrary. Thereby, not adopting proper criteria for the evolution of marks is in contradiction with the Constitutional provisions provided in Part III of the Constitution. Further, arbitrary evaluation without a corrective measure also violates Part III constitutional provisions.
NON-COMPLIANCE OF THE NEW AMENDMENT OF 2016
Initially, Rule 15 sub-rule (c) of the Bihar Civil Service (Judicial Branch) (Recruitment) Rules, 1955 was prevailing, which provided that there shall be no qualifying marks in the interview/viva-voce examination. Subsequently, in the year 2014, an amendment took place and a new provision was inserted. The said provision reads as “15(c) There shall be a qualifying mark of 35% for the viva-voce test”. Later on, in the year 2016, again an amendment on 28.12.2016 took place. The new amendment of 2016, reads as “The existing Rule 15 shall be substituted by as hereunder: – a) The High Court shall have the discretion to fix the qualifying marks in any or all the subjects at the written examination, in consultation with the Commission. b) The minimum qualifying marks shall be relaxed by 5% marks in each theory paper and by 5% lower marks in the aggregate than the general category candidates in respect of all reserved category candidates including women and orthopedically disabled category candidates.” Thereby deleting the sub-rule (c) of Rule 15.” Thereby, the Rule 15 (c) was again deleted.
It is obvious from the above discussion, that the sub-rule (c) of Rule 15 that specified the minimum qualifying marks for the interview/viva-voce exam was deleted when Rule 15 was replaced by a new rule as a result of a revision to the Bihar Civil Services (Judicial Branch) recruiting regulations in 2016. However, the aforementioned amendment was not implemented, and through the advertisement, they once more indicated that the minimum qualifying mark for the interview/viva-voce test was 35%.
REPORT OF JUSTICE JAGANNATHA SHETTY COMMISSION
In the year 1996, a commission was setup to examine the grievances of the staff of the Subordinate Judiciary as per the direction of the Supreme Court. This was headed by none other than Justice Jagannatha Shetty. In his final report, the commission, in regard to the interview/viva voce observed that “The Commission has received innumerable complaints that the selection by only viva-voce has more often led to arbitrariness if not whimsical selection, unjust if not unreasonable with respect to High Courts, we do not want to carry any such impression. But we do feel that there is less transparency and objectivity in the selection process”. The committee has recommended that Each candidate should have between 25 and 30 minutes to complete the viva-voce test in a thorough and scientific manner. The viva-voce shall equal to 50 marks. There won’t be a cut-off score for the viva-voce test. Further, it was also recommended that The merit list will be prepared on the basis of marks/grades obtained both in the Written Examination and viva-voce. Moreover, in regard of the procedure, the committee recommends that “The viva-voce Examination will adopt the following procedure: (a) Pro-forma containing categories such as knowledge / Skills / Attitudes / Ethics / Communication / Character, etc., be developed (this will depend on what are the qualities the judiciary is looking for in the prospective Judges being interviewed) in advance and each category may be given relative weightage (credits) in terms of marks. For example, if the total Viva marks are 100, one may assign 10 marks for knowledge / comprehension, 5 marks for ethics /attitude, 25 marks for skills of judging, 10 marks for communication abilities, 10 marks for general knowledge, etc…”.
The aforementioned guidelines have been suggested by the Justice Shetty Commission after it found “arbitrariness” and “unjustness” in the viva-voce test.
SELECTION EXCLUSIVELY ON THE BASIS OF VIVA VOCE TEST IGNORING THE MARKS IN WRITTEN TEST IS NOT VAILD.
One such instance arises in the judgment of Praveen Singh v. State of Punjab and Ors (2000 8 SCC 633). The selection process under Rule 12 (1) of Punjab Development and Panchayat Class-II (Service ) Rules, 1974 was under question. It stated that specific marks were earmarked for written examination of various subjects together with totality of marks for viva voce test. Out of 450 marks, only 50 marks were allotted to the interview – on the such distribution of marks 50 marks of viva voce alone cannot be relevant and crucial for selection treating the other 400 marks as superfluous and of no effect at all. The court in the Present case observed that placing reliance on 50 marks for selection and avoiding 400 marks is unreasonable and arbitrary. The commission ought to have taken note of the written examination result as well – The commission was directed to complete the appointment in accordance with existing rules. Both written and viva voce tests should be taken into consideration for effecting the appointment.
CONCLUSION.
In the present case, we have seen that the procedure adopted in the interview really raises a great concern on the grounds of equality and the principle of natural justice. In my opinion, the procedure adopted in the interview itself is unconstitutional. The grounds for the same have been discussed at length in this article. Even if we rely on the judgment of the supreme court, we can say that the procedure adopted was unconstitutional on the ground of arbitrariness and violation of the right to Equality.