FOREWORD - upsc.gov.in
957
FOREWORD In the Sixth National Conference of the State Public Service Commissions held on 7-8 February, 2003, the Karnataka Public Service Commission was bestowed with the responsibility of Compilation of Court Judgments having a bearing on the role and functioning of the Public Service Commissions. At that occasion the Chairman of the Conference had requested the Chairmen of various other State Public Service Commissions to assist the Karnataka Public Service Commission in carrying out the ask by way of sending the copies of relevant judgments to the Karnataka Public Service Commission. The Karnataka Public Service Commission has deemed the entrustment of the responsibility as a privilege conferred upon it by the Conference to do its bit for the cause of Public Service Commissions in the country. The Karnataka Public Service Commission has carried out this important task with all the earnestness. Various State Public Service Commissions have also assisted the Karnataka Public Service in this regard by promptly sending relevant judgments to the Karnataka Public Service Commission. In the result, we have been able to bring out a very valuable compilation containing judgments of various Administrative Tribunals, High Courts and Supreme Court relevant to the functioning of the Public Service Commissions. To make this compilation slim and handy full texts judgments reported in Law Journals which have all India circulation like A.I.R. (All India Reporter), S.C.C. (Supreme Court Cases) and S.L.R. (Service Law Reporter) are not printed but only citation with gist of each judgment is given. I hope that this compendium of judgments will go a long way in assisting the Public Service Commissions in discharging their duties smoothly and in accordance with the law of the land. I also hope that the functioning of the Public Service Commissions will be more effective because of the ready availability of the judicial pronouncements. I am grateful to the Chairman of the Conference Sri.H.C.Hota, then Chairman, Union Public Service Commission and my brother Chairmen of various State Public Service Commissions who resolved to entrust this responsibility to the Karnataka Public Service Commission. Date: 19-11-2005 Dr. H.N.KRISHNA Bangalore. Chairman, Karnataka Public Service Commission.
Transcript of FOREWORD - upsc.gov.in
FOREWORD In the Sixth National Conference of the State Public Service Commissions held on 7-8 February, 2003, the Karnataka Public Service Commission was bestowed with the responsibility of Compilation of Court Judgments having a bearing on the role and functioning of the Public Service Commissions. At that occasion the Chairman of the Conference had requested the Chairmen of various other State Public Service Commissions to assist the Karnataka Public Service Commission in carrying out the ask by way of sending the copies of relevant judgments to the Karnataka Public Service Commission. The Karnataka Public Service Commission has deemed the entrustment of the responsibility as a privilege conferred upon it by the Conference to do its bit for the cause of Public Service Commissions in the country. The Karnataka Public Service Commission has carried out this important task with all the earnestness. Various State Public Service Commissions have also assisted the Karnataka Public Service in this regard by promptly sending relevant judgments to the Karnataka Public Service Commission. In the result, we have been able to bring out a very valuable compilation containing judgments of various Administrative Tribunals, High Courts and Supreme Court relevant to the functioning of the Public Service Commissions. To make this compilation slim and handy full texts judgments reported in Law Journals which have all India circulation like A.I.R. (All India Reporter), S.C.C. (Supreme Court Cases) and S.L.R. (Service Law Reporter) are not printed but only citation with gist of each judgment is given. I hope that this compendium of judgments will go a long way in assisting the Public Service Commissions in discharging their duties smoothly and in accordance with the law of the land. I also hope that the functioning of the Public Service Commissions will be more effective because of the ready availability of the judicial pronouncements. I am grateful to the Chairman of the Conference Sri.H.C.Hota, then Chairman, Union Public Service Commission and my brother Chairmen of various State Public Service Commissions who resolved to entrust this responsibility to the Karnataka Public Service Commission. Date: 19-11-2005 Dr. H.N.KRISHNA Bangalore. Chairman, Karnataka Public Service Commission.
INDEX Page Nos.
1. Union Public Service Commission 1 to 103
2. Arunachal Pradesh Public Service Commission 104 to 130
3. Assam Pradesh Public Service Commission 131 to 180
4. Bihar Public Service Commission 181 to 185
5. Goa Pradesh Public Service Commission 186 to 190
6. Gujarat Public Service Commission 191 to 222
7. Haryana Public Service Commission 223 to 236
8. Himachal Pradesh Public Service Commission 237 to 253
9. Jharkhand Public Service Commission 254 to 272
10. Karnataka Public Service Commission 273 to 444
11. Kerala Public Service Commission 445 to 472
12. Madhya Pradesh Public Service Commission 473 to 493
13. Maharashtra Public Service Commission 494 to 533
14. Manipur Pradesh Public Service Commission 534 to 545
15. Mizoram Public Service Commission 546 to 559
16. Nagaland Pradesh Public Service Commission 560 to 568
17. Orissa Public Service Commission 569 to 611
18. Punjab Pradesh Public Service Commission 612 to 665
19. Rajasthan Public Service Commission 666 to 724
20. Sikkim Public Service Commission 725 to 751
21. Tamil Nadu Public Service Commission 752 to 756
22. Tripura Public Service Commission 757 to 770
23. Uttar Pradesh Public Service Commission 771 to 852
24. West Bengal Public Service Commission 853 to 950
SUBJECT INDEX Subject-wise classifications of various Judgments pertaining to PSCs
Subject Page No.
Chapter 1 Appointment (i) Candidate refuses to join the appointment, name
deleted from the list of qualified candidates. No request for change of the allotment of post shall be considered.
192-221
(ii) Promotional post cannot be filled of by direct recruitment
258-261
(iii) Petitioner claiming appointment from extra list 352-358 (iv) Vacancy created by not joining the post 677-684 (v) Regularisation of adhoc
Appointment 100-101 446-450 561-568,
619, 913-920 933-934
(vi) Restricting the number of vacancies 107-109 159-172
(vii) Selection Process/Promotion 26-37 44-48 49-56 57-61 62-64 65-72 73-74 92-95 570
579-590 639
674-675 676
740-747 859-874 875-882
(viii) Employee claim right to promotion 910-912 (ix) Appointment can be made only during the currency of
the list 460
(x) Selection Committee/Select List 75-82 116-120
225 667-668
(xi) Irregularities in Selection Process 142-158 883-888 921-930
(xii) Interview viva voce test 640-647 (xiii) Debarment of Candidates 88-89 (xiv) Appointment order issued to selected candidates after
terminating the Service of Ad hoc lecturer following the principle “last come first Go”
222
(xv) Selection based solely on Personality test and viva-voce
502-524
Chapter II Age Relaxation 3, 38-39
(i) Various cases relating to Age relaxation/Concession 85 96-97
102-103 132-141 255-256
257 262-268 478-493 591-593
Chapter III Short comings in Application 84, 114-115
(i) Rejection of Applications 225 468-469
(ii) Application to appointing authority 336-340 (iii) Incomplete mark sheet in application allowed 359-365 (iv) Name of the post to be specified in Application 379-381 (v) Experience Certificate not produced at Interview 416-418 (vi) Application rejected on ground of acquiring degree on
distance education 455-458
(vii) Candidates not informed the fate of his application 98-99 (viii) Documents relating to age, qualification, experience to
be produced along with application 459
Chapter IV Confidential Report 44-48 49-56
(i) Assessment and related matters 62-64 73-74
187-190 547-549 550-553 558-559
Chapter V Eligibility 110-113 366-378
(i) Cases related to Eligibility for the post applied for 613-614, 931-932
(ii) Eligibility criteria to be fulfilled on the last date fixed for receipt of applications
238-242 243-252 528-533
Chapter VI Examination (i) Extension of time for holding examination due to law
and order problem 270-271 349-351
(ii) Rejection of overage candidate 272 (iii) Error in randomization of series in Computer
Programming 330-335
(iv) Caste certificate produced after last date of receipt of application
382-385
(v) Substitution of Additional answer book 386-390 (vi) Wrong form in Caste certificate 391-394
401-404 405-409
(vii) Moderation 2 (viii) Qualifying Marks 4-7
105-106 703-717 748-751
(ix) Proof of passing qualifying examination by prescribed date
40-43
(x) Authority to announce subjects, scheme or syllabus 753-756 (xi) Scaling 783-792
793-817 818-831 832-852
(xii) Computation of Marks 283-285 (xiii) Rounding of Marks 224-618
629-638 (xiv) Weightage of 10% Marks to rural candidates 316-323
324-329 395-400
(xv) Revaluation of Mark declared after the last date of application
410-415
(xvi) Acquired higher qualification in the same faculty such qualification certainly be stated to presuppose the acquisition of the lower qualification prescribed.
461-464 554-557
(xvii) Examination relating to Marks 8-25, 649-665,
935-937-939 (xviii) Disclosure of identity 229-230 (xix) Less mark in viva-voce higher marks in written examn. 231-235 (xx) Conveying of marks obtained to non selected candidate 236 (xxi) Eligibility criteria to be fulfilled on the last date fixed
for receipt of applications 238-242 243-252 528-533
(xxii) Re-examination for snatching/Loss of Admit card 269 (xxiii) Revaluation of Answer Script 423-444
501 535-541 542-545 575-578
(xxix) Selection based solely on Personality test and viva voce 502-524 (xxx) Scrutiny of answer scripts by candidates 607 (xxxi) Percentage of Marks 495-500
617 670-671
(xxxii) Advertisement should specify the post 294-311 (xxxiii) Disputing rank in Merit list 451-454 (xxxiv) Debarment of candidates 88-89 (xxxv) Age Relaxation
Various cases relating to Age relaxation/Concession
3, 38-39
85 96-97
102-103 132-141 255-256
257 262-268 478-493 591-593
Chapter VII Recruitment (i) No. of vacancies should be notified in Recruitment
notification 940-950
(ii) Method of Recruitment 274-282 (iii) Recruitment Rules 121-130
173-180
182-185 (iv) Operation of reserve list 685-696 (v) Amendment of Rules 669 (vi) Short listing of Candidates 86-87,
90-91,98, 99,525,527,
571 572-574 594-603
616 617, 628
(vii) Educational Qualification 286 528-533 692-673 697-702 718-724 758-762 763-770 889-909
(viii) Appointment order issued to selected candidates after terminating the Service of Ad hoc Lecturer following the principle “Last come first Go”
222
(ix) Selection based solely on Personality test and viva-voce
502-524
(x) Advertisement should specify the post 294-311 (xi) Vacancies created by not joining the post 677-684
Chapter-VIII Age Relaxation Various cases relating to Age relaxation/Concession 3,
38-39 85
96-97 102-103 132-141 255-256
257 262-268 478-493 591-593
Chapter IX Reservation 226-228 726-735 736-739
(i) Petitioners have no case to ask for preference over the other-Ex-servicemen
648
(ii) Ex-servicemen 287-293 604-606
(iii) Reservation in Gr.’A’ 312-315 (iv) Reservation in excess of Permissible limits 341-348 (v) Reservation in Communities posts 470-472
Chapter X Rules, function and Regulation of P.S.C. (i) State Tribunals will have jurisdiction relating to
Service matters concerning State PSCs 419-422
(ii) Quashing of Section 3 of the Kerala P.S.C. (Additional Functions as respects to KSRTC) Act, 1970
465-467 608-611
615 (iii) Rules of Procedure of Punjab PSC 620-627 (iv) Dispensing with the consultation of the Commission 772-782
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UNION PUBLIC SERVICE COMMISSION
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SUPREME COURT OF INDIA S.L.P NO.15251/86
D.D. 11.3.1987
Hon'ble Mr. Justice V.Balakrishna Eradi Hon'ble Mr. Justice V.Khalid
Surajit Kumar Das Kamlesh Haribhai Goradia - Petitioners Vs. Chairman, UPSC & Anr. – Respondents
Whether moderation system followed by UPSC is valid? Held – YES as under:
Upon hearing counsel the Court made the following
O R D E R SLP No.15251/86: We are in agreement with the view expressed by a Division Bench
of the High Court that the system of moderation of marks adopted and followed by the
Union Public Service Commission in evaluating the performance of the candidates
appearing for the Civil Services Examination cannot be said to be vitiated by the
arbitrariness or illegality of any kind. Special leave petition is accordingly dismissed.
SLP No.14000/86: In view of the order passed in SLP No.15251/86 Special leave
petition is dismissed.
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S.L.P. (C) No.7999/94 D.D. 9.5.1994
The Hon'ble Mr. Justice Kuldip Singh The Hon'ble Mr. Justice B.L.Hansaria
Rajendra Kumar Bhati and Ors.- Petitioners Vs. Union P.S.C. & Anr.- Respondents The applicants who were OBCs demanded relaxation/concession in age and attempts similar to SC/STs. Held as under: Upon hearing counsel the Court made the following
ORDER Whether any concession in any form are to be extended to the backward
classes is a matter of policy for the Government to consider. This Court cannot go
into this question. The Special Leave Petition is dismissed.
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C.A.NO.9007 & 98/1996 D.D. 09.08.2001
The Hon'ble Mr. Justice S.Rajendra Babu The Hon'ble Mr. Justice Doraiswamy Raju
Union Public Service Commission –Appellant Vs. A.Cletus & Others – Respondents
Interpretation of Rules 15 & 16 of Competitive Examination for Civil Services Rules 1995. Held – Interpretation placed before the Tribunal appears to us perfectly in order in as much as the screening test done through a Preliminary Examination is applicable to all the candidates irrespective of the group to which they belong. There is no need to categorize the candidates as to whether they belong to different reserved categories or not and, thereafter, find out the group to which they belong before they qualify in the Preliminary Examination. ORDER The Rules that came up for consideration before the Tribunal are:
“ Rules 15 and 16 of Rules for Competitive Examination for Civil Services 1995:
15. Candidates who obtain such minimum qualifying marks in the Preliminary Examination as may be fixed by the Commission at their discretion shall be admitted to the Main Examination; and candidates who obtain such minimum qualifying marks in the Main Examination (Written) as may be fixed by the Commission at their discretion shall be summoned by them for an interview for personality test. Provided that candidates belonging to the Scheduled Castes or Scheduled Tribes or Other Backward Classes may be summoned for an interview for a personality test by the Commission by applying relaxed standards in the Preliminary Examination as well as main Examination (Written) if the Commission is of the opinion that sufficient number of candidates from these communities are not likely to be summoned for interview for a personality test on the basis of general standard in order to fill up the vacancies reserved for them. 16(i) After the interview, the candidates will be arranged by the Commission in the order of merit as disclosed by the aggregate marks finally awarded to each candidates in the Main Examination (Written) examination as well as interview in that order so many candidates are found by the Commission to be qualified at the examination shall be recommended for appointment up to the number of unreserved vacancies decided to be filled on the result of the examination. (ii) The candidates belonging to any of the Scheduled Castes or the Scheduled Tribes or the Other Backward Classes may, to the extent of the extent of the number of vacancies reserved for the Scheduled Castes and the Scheduled Tribes, and the Other backward Classes be recommended by the Commission by a relaxed standard, subject to the fitness of these candidates for selection to the service.
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Provided that the candidates belonging to the Scheduled Castes and the Scheduled Tribes, and the other Backward Classes who have been recommended by the Commission without resorting to the relaxed standard referred to in this sub-rule shall not be adjusted against the vacancies reserved for the Scheduled Castes and the Scheduled Tribes, and the other backward Classes.”
and the said Rules have to be read with Rule 3 which provides for reservation:
“ 3. The number of vacancies to be filled on the result of the examination will be specified in the Notice issued by the Commission. Reservation will be made for candidates belonging to the Scheduled Castes and the Scheduled Tribes, and the other Backward Classes in respect of vacancies as may be fixed by the Government.”
Having read these Rules and considering the various contentions raised before
the Tribunal, held as follows:
(i) Since marks obtained in the preliminary Examination by the candidates who are declared qualified for admission to Main Examination, will not be counted for determining their final order of merit and since the Preliminary Examination is only a screening test, there is no obligation on part of the UPSC to publish the marks obtained or the cut off marks for the open competition and for each reserved category; (ii) The UPSC is first required to fix a minimum qualifying marks or a pass in the Preliminary Examination and candidates who obtain such minimum qualifying marks as fixed by UPSC, have to be admitted to the Main Examination. Similarly for the Written Test and those candidates who obtain the marks so fixed by the UPSC have to be summoned for the interview for the personality test; (iii) The UPSC instead of first following the procedure laid down in the main rule and then going to the proviso, has evolved a procedure based only on the proviso, totally ignoring the main rule. The main rule has thus been made inoperative; (iv) A proviso cannot be permitted to defeat the basic intent expressed in the substantive provision. Nor can it be allowed to nullify the main rule or to make inoperative: (v) A normal construction of Rule 15 would require that a minimum qualifying marks are fixed for candidates irrespective of the community to which they belong. When the qualifying marks are fixed for Preliminary and for the Main Examination (Written), the UPSC has no choice except to declare them as having qualified in the examination; (vi) No minimum qualifying marks for the candidates as the whole has been fixed and no list of successful candidates on the basis of minimum qualifying marks has been prepared; (vii) The UPSC has decided that out of the total number sent for Main (Written) Examination, the OBC will only be 27%, SC 15% and ST 7.5% leaving the remaining 50.5% exclusively for the unreserved forward communities, the UPSC has fixed an upper ceiling on the
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percentage of candidates to be sent for the Main (Written) Examination for each reserved Community; (viii) Instead of starting from the main part of Rule 15 and then going to proviso, the UPSC had started with the proviso, and made the proviso alone the basis for the procedure which has been evolved; (ix) The compartmentalization right from the initial stage has resulted in 50.5% that is 4897 candidates being exclusively reserved for unreserved forward communities; (x) The UPSC has completely inter-changed the role of the proviso and the main rule and evolved a procedure based on proviso. While a proviso is intended to take out a part of the main rule for special treatment and to operate in a contingency not provided for in the main rule, the UPSC has made the proviso the main rule and has made the main rule totally inoperative; (xi) When the entire exercise starts from the roster percentage and ends with the roster percentage, the procedure solely based on the roster cannot divest itself from the twin principles of reservation set out by the Hon,ble Supreme Court in R.K.Sabbarwal & Ors. Vs. State of Punjab and Ors. (1995 SSC (L&S) 548); (xii) The UPSC should evolve a procedure so that the reserved community candidates who fall within the list of candidates selected for the unreserved posts at these two earlier stages are not considered as candidates of the reserved community while fixing the number to be called for the reserved posts; (xiii) By computing the reserved community candidates who were selected without relaxed standard at the earlier stage of the examination against the reserved vacancies the UPSC had to extend the field of the unreserved community and call more candidates from this category than would have been called if these selected candidates of reserved community had been computed against the unreserved community; (xiv) Instead of extending the field of the unreserved community he field ought to have been extended for the reserved community by excluding the candidates who were selected without relaxed standards for fixing the number to be called for the reserved vacancies; (xv) The admitted law is that a reserved community candidate selected without relaxed standard is not to be considered against the reserved vacancies. It would be in violation of this law of land if such candidates are counted against reserved vacancies at the two earlier stages consequently depriving the other reserved community candidates from being considered for the reserved posts; xvi) The principle laid down in the proviso to Rule 16(ii) ibid should be applied even at the stages of the Preliminary and Main Examinations by the UPSC; xvii) The change in procedure to be followed by the UPSC should be conducted for the year 1996 onwards.
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The interpretation placed before the Tribunal appears to us to be perfectly in
order inasmuch as the Screening test done through a preliminary examination is
applicable to all the candidates irrespective of the group to which they belong. There
is no need to categorise the candidates as to whether they belong to different reserved
categories or not and, thereafter, find out the group to which they belong before they
qualify in the preliminary examination.
Therefore, agreeing with the view made by the Tribunal, we dismiss these
appeals.
SLP(C)…………….2869/1996
Permission to file SLP is allowed.
The Special leave petition is dismissed in terms of the order passed in C.A.
Nos.9007-9008/1996 etc.
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CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI
OA NO.816/97 & Connected cases D.D. 22.8.1988
Shri P.K.Kartha, Hon'ble Vice-Chairman (Judicial) Shri S.P.Mukerji, Hon'ble Administrative Member
Shri Brij Kishore Dubey & Ors. – Applicants Vs. Union of India & Anr.. - Respondents The applicant who appeared for Civil Services (Preliminary) Examination 1990 but failed to qualify has sought for quashing of the Examination as null and void. Held – It is not open to the applicant, having appeared in the Examination and failed, to challenge the validity of the very rules under which the examination are held.
Hon'ble Shri. P.K.Kartha, Vice-Chairman
ORDER
In this batch of applications filed under Section 19 of the Administrative
Tribunals Act, 1985, the applicants, who appeared for the Civil Service (Mains)
Examination, 1986, the results of which were declared on 1-4-1987, were not declares
successful by the U.P.S.C Shri Dubey, Jain, pandey, Sharma and Jangid were not
called for the interview while Shri Barsaul had passed the written examination and
appeared for the interview but was not declared successful. As common questions of
law have been raised in these applications, it was decide to consider these applications
together in a common judgment.
2. The facts of these cases in brief are as follows. All the applicants have very
good academic records. Shri Dubey has obtained first division in B.Sc. And M.Sc. He
has also been awarded the C.S.I.R. Scholarship. He is presently doing his Ph.D. in
Botany. The medium of study in B.Sc., M.Sc and Ph.D had all along been English.
3. Shri Dain has obtained first position in B.A. from Punjab University. He has
obtained first division throughout his educational career.
4. Shri Barsaul also has obtained first division throughout. He is a medical
doctor by profession.
5. Shri Jangid has throughout been a first divisioner. He has been awarded the
National Scholarship by the University Grants Commission. He has done his B.A.
(Hons) and M.A. in Geography.
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6. Shri Sharma is doing D.Phil (Botony) from Allahabad University. He is also
being granted Scholarship by the University Grants Commission since March, 1986.
7. Shri Pandey has also been a first divisioner throughout. He was awarded Gold
Medal by Allahabad University in his B.Sc. Course. He has been awarded
Scholarship by the University Grant Commission and C.I.S.R.
8. The Department of personnel & Training in the Ministry of personnel &
Training, Administrative Reforms and Public Grievances and Pension has been
impended as the first respondent. The Union Public Service Commission (hereinafter
referred to as the ‘UPSC') is the second respondent.
9. The Department of personnel & Training is administratively concerned with
the recruitment to the various All India Service and Services of the Union and other
civil posts under the Union. For this purpose, rules are notified by them from time to
time. Formerly, this examination was called ‘ the Indian Administrative Service, etc.,
The various Services, recruitment to which was made through this examination, were
divided into three categories, viz., Category 1: Indian Administrative Service and
Indian Foreign Service, Category II: Indian Police Service and Union Territory Police
Service, and Category III: Central Service / Union Territory Civil Services Group ‘A’
and Group ‘ B'. The examinations were being conducted annually by the U.P.S.C.
10. In 1974, the UPSC conducted a Committee called, ‘Committee on Recruitment
Policy and Selection Methods’ Under the Chairmanship of Dr. D.S. Kothari
(commonly Known as ‘Kothari Committee’) to examine and report about the system
of recruitment to the All India and Central Services Class I and Class II followed by
the UPSC and to recommend such change in the scheme of examination and the
selection method as would give adequate emphasis to knowledge, skills and qualities
appropriate to the role and functions of the Services in the context of tasks of National
Development and Reconstruction. The Committee recommended, interalia, the
unified scheme of the examination for recruitment to all the Services having equal
number of papers and the same marks for interview tests. According to the
recommendations of the committee, the scheme was to consist of the following three
stages:-
One - Civil Service Preliminary Examination (Objective Type) for the selection of candidates for the Main Examination:
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Two - Civil Service Preliminary Examination (Written and Interview) to select candidate for entry to the Academy; and Three - Civil Services Post Training Test to be conducted by the Union Public Service Commission, On completion of the Foundation Course at the Academy, to assess personal qualities and attributes relevant to the civil services.
11. According to the recommendations of the Committee, the written part of the
Main examinations was to consist of the following papers:-
Paper I - Any one of the languages of the candidate’s choice from the list of languages included in the Eighth Schedule to the Constitution. - 300 marks
Paper II - English - -do-
Paper III- Essay - -do-
Paper IV- General Studies - 300 marks for each paper & V Papers VI, VII, VIII & IX - -do-
Candidates will offer two Subjects out of the list of optional Subjects. There will be two papers for each subject.
12. As regards the Indian Language and English paper, the relevant paragraphs of
the Committee are as follows:-
“3.22 We are convinced that every candidate desiring to join the All India and Central Service should have sound Knowledge of at least one of the Indian languages included in the Eighth Schedules to the Constitution. A young person who lacks proficiency even in one of our languages suffers from a major lacuna and is ill fitted for public service. Indeed the development of a well-rounded personality, it is necessary that our young people should have some interest in the languages and the related literatures of our country. We strongly recommend that there should be a compulsory paper for an Indian language, (to be selected by the candidates out of the language listed in the English in the Eighth Schedule) for both Preliminary Examination and the Main Examination.
3.23 We have been given careful thought to the role of English in our scheme of examinations. English has an important place in the life of our country. It is an important link language for purposes of administration, especially at the All India level. In many of our universities English continues to be medium of education, particularly at hr postgraduate level. Knowledge of English is essential for keeping in touch with new developments, particularly in science and technology. English is perhaps, the most used medium for international communication, we recommend that there should be a compulsory paper to test the adequacy of knowledge and proficiency in the use of English’.
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13. In Appendix IX, the committee recommended the syllabi of English and
Indian languages. The relevant portion is as follows:-
“(The syllabus of Eighth Schedule languages and English would be common.)
The aim of the paper is to test the candidate’s ability to read and understand serious discursive prose, and to express ideas clearly and correctly, in English / Indian language concerned.
The paper would be in three parts to test:-
(i) Comprehension of given passages, (ii) Usage and vocabulary and
a. (iii) Ability to critically discuss given statements.
14. The Central Government examined the recommendations of the Committee
along with the recommendations of the U.P.S.C. on these recommendations and
decide that the paper in English and the paper in the Indian language should be of
qualifying nature in the Civil Service (Main) Examination only and the marks
obtained in these papers should not be included in the competitive ranking of the
candidates but it would be necessary for the candidates to get qualifying marks in
these subjects. It was also decided that unnecessary high standard should not be set in
these papers as this might pose a handicap for candidates from the rural communities
and weaker sections of the Society.
15. The papers on the Indian language and English will be of matriculation and
equivalent standard and will be of qualifying nature. The marks obtained in these
papers will not be counted for ranking.
16. In the counter-affidavit filed by the Union of India, in Dubey’s case, it has
been stated that the above provision in the examination rules have been made in the
law for Public interest for valid, good and cogent reasons and applicable to all
candidates.
17. The salient provisions of the Rules governing for holding of competitive
examination by the U.P.S.C, (conduct of services examination) notified by the
Dept of Personnel & Training, may be mentioned in brief.
18. Rule 1 provides that the examination will be conducted by the UPSC in
the manner prescribed in Appendix I to the Rules. The dates or which and the place at
which the Preliminary and the Main Examinations will be held, shall be fixed by the
UPSC. Rule 4 provides that every candidate appearing at the examination, who is
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otherwise eligible, shall be permitted three attempts at the examination. Rule 5
provides that for the Indian Administrative Service and the Indian Police Service, a
candidate must be a citizen of India. For other Services, a candidate may be either a
citizen of India or a subject of Nepal, or Butan or Tibetan refugee who came over to
India before 1st January, 1962 with the intention of permanently settling in India or a
person of Indian origin who has migrated from some specified countries with the
intention of permanently settling in India. Rule 14 provides that candidates who
obtained such minimum qualifying marks in the preliminary Examination as may be
fixed by the Commission at their discretion, shall be admitted to the Main
Examination; and candidates who obtained such minimum qualifying marks in the
Main Examination (Written) as may be fixed by the Commission at their discretion,
shall be summoned by them for an interview for personality test. The proviso under
this rule deals with provision for relaxed standards in the case of candidates belonging
to Scheduled Castes or Scheduled Tribes. Rule 15 deals with the preparation of a list
of successful candidates by the UPSC in the order of merit. Rule 21 provides that the
candidates are informed that some knowledge of Hindi Prior to entry into Service
could be of advantage in passing departmental examinations which candidates have to
take after entry into Service. Appendix II to the Rules sets out the brief particulars
relating to the Services to which recruitment is made while Appendix III deals with
the regulations relating to the physical examination of the candidates. Thus, the rules
are comprehensive and self-contained.
19. Appendix I to the Rules deals with the manner of conducting the
examinations. The competitive examination comprises two successive stages:-
(i) Civil Services Preliminary Examination (Objective Type) for the selection of candidates for Main Examination; and
(ii) Civil Services (Main) Examination (Written and Interview) for
the selection of candidates for the various services and posts. 20. Only these candidates who are declared by the Commission to have qualified
in the Preliminary Examination will be eligible for admission to the Main
Examination. The Main Examination is a written examination consisted of the
following papers:-
Paper I - One of the Indian languages to be selected by the by the candidate from the languages included in the Eighth Schedule to the Constitution. - 300 Marks
Paper-II - English - 300 Marks
Papers III - General Studies - 300 Marks III and IV
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Paper V, VI, VII and VIII - Any two subjects to be selected from the list of the optional subjects set out in para 2 below. Bach subject will have two papers.
21. The interview test will carry 250 marks. The following note also occurs in
Appendix I as under:
Note (i) The papers on Indian language and English will be of matriculation or equivalent standard and will be of qualifying nature; the marks obtained in these papers will not be counted for ranking.
(ii) The papers on General Studies and Optional Subjects of only
such candidates will be evaluated and the standards as may be fixed by the Commission in their description for the evaluating papers on Indian Language and English.’’
22. It has further been stipulated in Appendix 1 that the Commission have
discretion to fix qualifying marks in any or all the subjects of the examinations.
23. All the applicants claim that they did exceedingly well at the examinations.
All of them have referred to some instances illustrating the unsatisfactory manner of
the conduct of the examination and the unfair attitude accepted by the UPSC. The
respective versions of both parties may be summed up as follows:-
(a) In the recent past, a number of instances have come to light intimating serious irregularities in the conduct of the examinations. In the 1985 examinations, the results of the Preliminary Examination were declared as considered from Patna and Bopal Centers was found to have qualified. They lodged a protest against the results. The matter was also taken up by the press, whereupon the UPSC scrutinized the matter and found that one computer of the tapes used was inaccurate and it affected a block of 2,058 candidates. As a result, the UPSC issued further letters to 232 candidates declaring them to have qualified for Civil Service (main) Examination.
In the counter- affidavit filed by the UPSC it has been submitted that in
respect of the 1985 examination, a snag in the working of one of the tapes was
detected after the declaration of the results. A thorough investigation was made on
verification, it was found that one tape had gone wrong. The whole result was
rechecked and it was found that 232 additional candidates had qualified for admission
to the Main Examination. These candidates were then declared qualified for the Main
Examination. However, it has been contended that the citing of this incident is not
relevant to the case of the applicant, one of the candidates, Shri Ragesh Khanna, had
also challenged the results of the examination on this very basis in the Delhi High
Court (CWP NO. 283/85), but the same was dismissed by the High Court.
14
(b) In Delhi for the same examination held in 1985, the UPSC. had issued two different roll numbers to a few candidates. Their attendance sheets in the Examination Hall were not theirs but of some other persons. All such candidates failed because the computer did not get the correct image of the roll numbers and as such, rejected their answer-sheets.
The UPSC, has denied this allegation in their counter-affidavit. It has been
stated that there was a clerical mistake in the issue of some roll numbers which was
duly corrected as soon as it came to their notice. There was no question of any
candidate not qualifying on this score.
(c) In the 1985 Examinations, when the result was declared, it was found that none from Bopal Center was selected for interview. The candidates from that Center made representations to the UPSC. When the Press took up the matter, the UPSC conducted inquiries and it was found that the answer-sheets of General Studies-II of all 95/97 candidates of that Center were lost and were untraceable. As such, fresh examination was held for these candidates as a result of which, 25 of them were called for interview. Out of these 25, 22 were finally declared successful.
The UPSC has submitted that due to loss of one of the registered parcels in
postal transit containing answer books of General Studies-II, the Commission had to
hold reexamination in this paper in respect of 94 candidates whose answer-books were
lost. The loss was entirely beyond the control of the Commission. However, in order
to give equal opportunity to all the candidates, the Commission held a re-examination.
This decision was taken by the Commission on its own as soon as the loss of the
parcel came to their notice and not on the basis of any representation from any
candidate.
(d) In 1985, the C.B.I registered a case under Sections 420, 464, 471 and 120-B of the I.P.C as also under the Prevention of Corruption Act against one, Ratipal Saroj and four employees of UPSC, Shri Saroj was selected in Civil Service Examinations, 1985 and was declared as No.3 in the merit list. A letter was written by certain candidates of Allahabad Centre to the Prime Minister declaring their suspicion and requested him to look into the matter. The C.B.I inquiries revealed that Shri Saroj joined the UPSC as Section Officer and then was promoted to the post of Deputy Secretary. He was well known to a number of officers in UPSC to whom he had been supplying various articles from time to time. It was alleged that he replaced his answer sheets with the new ones in the UPSC in collusion with the officers. In this examination he got very good marks and stood third in the examination.
The U.P.S.C has contended that Shri Saroj, Under Secretary in the Office of
the U.P.S.C was a candidate for the 1985 Examination, allegedly substituted some
of his answer-books with the connivance of certain officials of the Confidential
Branch. He was arrested by the C.B.I. for the alleged offences and was suspended
15
from service. Similarly, certain other officials, including two Section Officers of the
Confidential Branch who were also arrested for their alleged involvement in
substituting some of the answer-books of Shri Saroj, were also placed under
suspension and all of them continue to remain under suspension. The case is still
under investigation by the C.B.I. This case is, however, of no relevance insofar as
the applicant’s performance in the examination is concerned.
(e) In 1985, the C.B.I. filed another case under Sections 420 and 120-B of the I.P.C against Sanjay Bhatia and others. The accusation against him was that he produced false Caste Certificate showing himself to be a Scheduled Caste and he got himself selected for I.P.S.
As against this, the UPSC has contended that they verified the SC/ST claims of
candidates on the basis of original SC/ST certificates submitted by them at the time of
interview. The claim of the candidate to belong to Scheduled Caste was taken up on
an earlier occasion by them with the concerned Administration, who after verifying
the records, informed the UPSC that the claim of the candidate to belong to Scheduled
Caste was in order. Therefore, the Commission accepted the claim of the candidate to
belong to Scheduled Caste. However, while recommencing the names of candidates
for final appointment to the Government, full facts were reported to the Government
requesting them to satisfy themselves regarding the genuineness of the claim before
offering him the appointment.
(f) There are general allegations against many officers of the UPSC, that they got the question paper out in order to get their wards or relatives qualified for the Civil Services examinations. There are other allegations causing suspicion on account of the fact that the wards of I.A.S. officers are invariably selected in these examinations. The other allegations are that in Rau’s Circle (Rau Study Circle) for 1985 Examinations, a guess paper was given to the students with 11 questions out of which 8 questions appeared in the actual question paper. Further, during the investigations by the C.B.I. into the matters of Saroj and Sanjay Bhatia, two other candidates, namely, Mridula Sinha and Suresh Chandra were also found to be involved. It has also been reported in the Press that with the manipulation of the UPSC officials, answer-sheets had been substituted in some other cases.
The UPSC has stated that these are Mali cited and baseless allegations. They
have no information and the C.B.I having registered any case against Mridula Sinha
and Suresh Chandra. They have submitted that according to the established
procedures, whenever an officer or relative of an officer of the Commission was a
candidate for an examination, he is required to report the same to the Office and he is
dissociated from all confidential and sensitive activities of that examination. This has
been scrupulously followed by all officers of the Commission.
16
(g) It has been alleged that the UPSC, has been employing its policy of moderation of marks in their discretion to suit vested interests and not to achieve fairness.
As against the above, the U.P.S.C has contended that the system of
moderation of marks followed by them is not arbitrary or discriminatory but is well-
established and has stood the test of time and judicial scrutiny. They have submitted
that a candidate for the 1984 Examination filed a Special Civil Application No.
4547/85 in the Gujarat High Court challenging the moderation done in his answer-
book for various subjects. The Gujarat High Court dismissed the petition. Special
Leave Petition No. 15251/ 86 filed in the Supreme Court was also dismissed with the
following observation:-
“ We are in agreement with the view expressed by a Division Bench of the High Court that the system of moderation of marks adopted by the U.P.S.C. in evaluating the performance of the candidates appearing in the Civil Services Examination cannot be said to be vitiated by arbitrariness or illegality of any kind. SLP is accordingly dismissed.’
(b) The applicants have given other instances of irregularities. In 1981 Main Examination, the same question was repeated twice in General Studies Papers. In 1983, Preliminary Examination, a good number of answers to multiple choice questions of Economics Paper were out of the syllabus and were also incorrect. In 1984 Main Examination, moderation had to be carried out because the candidates with Economics had scored very low marks.
The U.P.S.C. has stated that according to the existing practice, all
representations from candidates about a question paper are considered, if necessary, in
consultation with academic experts. Corrective action is taken whenever called for to
ensure that no candidate suffers because of nay mistake in any paper which is set by
senior professors of academic institutions. The Commission follows a well-
established system of moderation.
(i) The results of the 1985 (Main) Examination were challenged in a writ petition before the Allahabad High Court, Lucknow Bench, and the candidates were granted another chance to take the examination.
The U.P.S.C. had pointed out that some of the candidates who appeared at the
1985 Examination, had filed a writ petition, as alleged. The High Court directed that
the petitioners who had not crossed 28 years and in the case of Scheduled Caste
candidates, 33 years, would be allowed to take Civil Services (Preliminary)
Examination, 1987 provisionally provided none of them had availed three chances.
The Commission had not been able to file a reply or make any submissions before the
above orders were passed. The case is still pending before the High Court.
17
23. The applicants have contended that the respondents at no stage either
admitted to look the grievances of the candidates at the first instance until the matter
was repeatedly taken by the Press and a lot of pressure put on the respondents or the
matters were taken to the courts. They have further submitted that there may be other
instances of irregularities which have not surfaced because the candidates have not
protested. The actions and activities of the respondents have resulted in loss of faith in
the fair conduct of examinations.
24. As against the above, the U.P.S.C. has stated in their counter affidavit that
these are wild and unsubstantiated allegations against the Commission by unsuccessful
candidates. The U.P.S.C. is a responsible constitutional functionary enjoying the
highest reputation.
25. We may now consider the facts relevant to the individual cases.
26. In Shri Dubey’s case, the result of the Civil Services (Main) Examination of
1986 were declared by the respondents on 1-4-1987. The roll number of the applicant
did not appear in the said result. His enquires revealed that none out of 50 candidates
with optional subject combination of Botany and Zoology from Allahabad Centre, was
called for interview. Being aggrieved by the results, he made representations to the
respondents. He has not received any marks-sheet so far. The U.P.S.C informed him
vide their letter dated 28-8-87 that he had failed to obtain qualifying marks fixed by
them in the compulsory qualifying papers in English and, therefore, his scripts in
General Studies and optional subjects were not valued. His contention is that he had
done his English paper for 1986 Examination much better than his previous
examinations in 1984 and 1985 when he had qualified fin the English paper. In this
context, he has pointed out that in 1985, when the respondents had decreased the age-
limit for the examination from 28 years to 26 years, many candidates were affected.
An agitation was organized by several students at the Gate of the Office of the
U.P.S.C. The applicant led the group of affected Allahabad candidates in this
agitation. After great persuasions and intensive agitation by the applicant and others,
the respondents were force to relax the age and increase the same from 26 to 28 years.
During this agitation, the applicant, along with the respondents and he had also made
several representation on their behalf. He has submitted that the action of the
U.P.S.C. is mal fide, vindictive, arbitrary and illegal. According to him, the
respondents should have declared the minimum standard for the qualifying subjects.
He has, therefore, prayed that the results of the examination of 1986 should be
quashed. He has further Prayed that the rules of the examination, insofar as they
18
confer unfettered discretion upon the U.P.S.C. to fix the minimum standard for
qualifying in the compulsory subjects be quashed as being arbitrary and ultra vires the
Constitution of India. He has also sought a declaration that the rules for examination
so far as the some do not provide for revaluation, are discriminatory and violative of
the democratic and fundamental right of the applicant under the constitution of India.
The other reliefs sought are:-
(i) For directing the respondents to disclose the minimum standard to be attained in the qualifying compulsory subjects and also to disclose the same in the examination rules henceforth;
(ii) To call for and re-examine/ re-evaluate/ re-assess the answer-
sheets/ scripts of the applicant for English paper in the 1986 Examination in comparison with the scripts/ answer-sheets of the applicant for the 1984-85 Examinations and declare the applicant to have qualified for the same;
(iii) Direct the respondents to declare the results of the applicant in other General Studies and optionals; and
(iv) Direct the respondents to allow the applicants to appear for the
interview. An alternative prayer has been made to the effect that the respondents should be directed to grant another chance to the applicant to appear for the Civil Services (Main) Examination.
27. The respondents have contended in their counter- affidavit that no relief of any
kind as prayed for should be granted as the evaluation of the applicants performance in
the paper on English has been done in a fair manner and the same standards were
applied to him as were applied to other candidates for the examinations. The
candidates are admitted to an examination in accordance with the eligibility conditions
prescribed in the rules and if the applicant satisfies these conditions, he is free to make
an application. However, his prayer for granting him another chance to appear at the
examination simply because he failed in the examination held in 1986, does not
deserve any consideration. It has also been submitted that the power conferred by the
rules for fixation of qualifying marks have been exercised reasonably and judiciously.
28. In Shri Dain’s case, the applicant was declared to have qualified in the
Preliminary Examination and was admitted to write the Main Examination and was
admitted to write the Main Examination. His optional subjects were History and
Sociology. His roll number did not appear in the results declared on 1-4-1987. The
applicant received his mark-sheet on 8-5-1987 which indicated very low marks in
Sociology papers. Being aggrieved by the results, he submitted a representation to the
U.P.S.C on 11-5-1987 for re-evaluation. This request was turned down on the ground
that there was no provision for the same in the rules. The applicant has made similar
other prayer as contained in Shri Dubey,s case.
19
29. In the case of Shri Barsaul, the mark-sheet issued by the U.P.S.C indicated
that he had obtained very low marks in his General Studies Paper-II, History Papers I
and II and Zoology papers I and II. He had obtained around 64 percent marks at the
interview (160 out of 250). Being aggrieved by the results, he represented to the
U.P.S.C requesting for re-evaluation of his answer-sheets. He has also prayed for
other relief’s similar to those contained in Shri Dubey’s case.
30. Shri Pandey, who appeared at the examination from the Allahabad Center,
had chosen Botany and History as his optional subjects. His roll number did not
appear in the results. He has prayed that the respondents should be directed to check,
recheck/ re-evaluate his answer-books.
31. Shri Sharma had opted for Botany and Agriculture as the optional papers.
His roll number also did not appear in the results. He has also prayed for similar
reliefs as in Shri Pandey’s application.
32. In the case of Shri Dangid, his roll number also did not figure in the results.
His apprehension is that as he had written all his papers in Hindi, he has become a
victim of language bias. He has also prayed for the same reliefs as in Shri Pandey’s
case.
33. We have carefully gone through the records of these cases and have heard the
learned counsel of both the parties. The first question arising for consideration is
whether the rules of the examination insofar as they confer unfettered discretion upon
the U.P.S.C to fix the minimum standard for qualifying in the compulsory subjects and
not to provide for re-evaluation, is arbitrary and violative of the fundamental right of
the applicants guaranteed under Article 14 of the Constitution.
34. The legal position in regard to the validity of a piece of legislation or a rule is
well settled. There is always a presumption in favors of the constitutionality of an
enactment or a rule made there under. The burden is upon him who attacks it to show
that there has been a clear transgression of the constitutional principles. There is also
a presumption that laws are directed to problems made manifest by experience and
that discriminations by the Legislature are based on adequate grounds. When a matter
is challenged before a Court, it may take into account, in order to sustain the
presumption of constitutionality, matters of common knowledge, matters of common
report, the history of the times and like considerations (vide Ram Krishna Dalmia Vs.
20
Justice S.R. Tendulkar, A.I.R 1958 S.C 538 and Darala Education Bill in re, , A.I.R
1958 S.C 956). In the instant case, we may consider the rationals for fixing the
minimum standard for qualifying in the compulsory subjects and the non-provision for
re-evalualtion in the Rules.
35. The Kothari Committee has observed in its report that a young person who
lack proficiency even in one of the Indian Languages listed in the Eighth Schedules
to the Constitution, suffers from a major lacuna and is ill fitted for public service.
English has an important place in the life of our country, being an important language
for purposes of administration, especially at the All – India level.
36. Thus, an Expert Committee has highlighted the importance of a candidate
possessing adequate knowledge of one of the Indian Languages as well as English.
37. The Kothari Committee however, did not suggest qualifying marks for
English or Indian Languages. According to the Committee, the aim of the papers in
English and the Indian Languages is to test the candidate’s ability to read and
understand service discursive prose and to express one’s ideas clearly and correctly in
the language concerned. The Government decides that the papers on these
compulsory subjects would be of matriculation and equivalent standard and will be of
qualifying nature. The marks obtained in these papers will not be counted for ranking.
38. At the time of the hearing, the learned Additional Solicitor General
contended that the rules have conferred discretion on the U.P.S.C. to fix the minimum
qualifying marks for the compulsory subjects for the sake of flexibility. The
Commission has the discretion to fix the minimum qualifying marks so as to regulate
the number of candidates for the purpose of calling them for interview. As the
minimum qualifying marks could be variable from examination to examination, it is
not disclosed to the candidates and has been kept as a secret. However, he disclosed
the secret to us at the time of the hearing. According to him, the minimum marks for
the qualifying subjects have all along been only 20 percent.
39. The statistics of the candidates who have failed in these subjects for the last
three years were indicated to us during the hearing. The percentage of candidates who
failed in these subjects is around 4 to 5 percent of the candidates who qualify for
admission to the Main Examination. The statistics of the candidates who failed in the
Indian language/ English in the examinations of 1985, 1986 and 1987 are as under:-
21
Year No of candidates No of candidates Failed in Indian failed in English Language
1985 47 327
1986 29 280
1987 23 660
40. It appears that the Government has decided on policy considerations not to
include the marks in the compulsory papers in the competitive component. The rules
were amended in 1986 to provide that Indian Language will not be compulsory for
candidates hailing from North-Eastern States/ Union Territories, or Arunachal
Pradesh, Manipur, Meghalaya, Mizoram, Nagaland and Sikkim. No such exemption
is given in the case of English.
41. As regards re-evaluation of answer-scripts of the candidates, the rules of the
examination neither permit it nor do they prohibit it. The reason way re-evaluation is
not being allowed appears to be that it would cast a heavy burden on the U.P.S.C if
requests for re-evaluation are received from a large number of candidates.
41A. A similar prayer for revaluation was considered by the Calcutta Bench of the
Tribunal in its judgment stated in 12-2-86 in Sunjay Das Gupta Vs. Union of India. In
that case, the applicant had appeared for Civil Services (Main) Examinations held by
the U.P.S.C thrice (between 1978 and 1983). In none of these examinations, the
result was upto his expectations. On the first two occasions, he was offered
appointment in Group ‘B’ Services, which he rejected. On the third occasion, he was
offered an appointment in a Group ‘C’ Service and he accepted it. He could not get
into the I.A.S. Service or some other Service of his choice as his position was low
down in the merit list. He contended that his answer-papers have not been fairly and
properly examined and he requested the U.P.S.C for re-examination of his answer-
papers. This was not agreed to by the U.P.S.C. Dismissing the application, this
Tribunal observed that the judicial process does not exist for supporting any body’s
whims or his own exaggerated self-assessment. If every candidate, who is
unsuccessful, or who secures marks below his expectations, is allowed to plead
unfair evaluation on the part of the U.P.S.C and compel the Commission to re-evaluate
the papers, the whole system of examinations by the U.P.S.C will come to a halt.
41B. We are inclined to agree with the views expressed by the Calcutta Bench of
the Tribunal.
22
42. In our opinion, the presumption of qualifying marks in compulsory subjects
cannot be considered to be unconstitutional. The present system which had been
prescribed in the rules is based on the experience of holding examinations over the
years and the policy and wisdom of the Government. Merely because there can be a
different view of the matter, we are not inclined to strike down the rules embodying
the existing system.
43. In Maharashtra State Board of Secondary Education and Others Vs. Paritosh
Bhupes Kumar Sheth, A.I.R. 1984 SC 1543, the Supreme Court observed as under:-
“ The Court should be extremely reluctant to substitute its own viewers as to what is wise, prudent and proper in relation to academic matters in preference to these formulated by professional men possessing technical expertise and rich experience institutions and the department governing them.”
44. Relying upon the observations of the Supreme Court in Gavid Rasul Batt Vs.
Jammu & Kashmir, A.I.R 1984 S.C. 373 a Division Bench of the Gujarath High Court
in L.P.A. No.851/96 delivered its judgment on 14th April, 1986 wherein it has been
Observed thus:-
“ It is no doubt true that in academic matters the jurisdiction of the court under Article 226 of the Constitution is peripheral inasmuch as the Court does not sit in the matter as a Court of Appeal nor does it interferes unless the system of examination including that of moderation is unreasonable and arbitrary or where malafides are alleged. It cannot be gainsaid that if in the selection of the method of examination including that of moderation two alternative courses are reasonably possible, the Court would not insist that a particular method be adopted since it would be in the ultimate analysis the agency conducting the examination which would be the best judge as to which method should be preferred and adopted having regard to the peculiar situation before us. By and large, it would not be proper for the Courts to venture into such inclusive thickets’’ like selection procedure, method of examination including that of moderation etc., when such matters are left to the expertise of the agency to which the assignment of selection is made since it is assumed that the members of such agency are men of experience and more knowledge in that behalf except where the method and or the procedure so adopted becomes unreasonable or arbitrary or amounts to denial of equal opportunity.’’
45. The Supreme Court dismissed on 11-3-1987 the SLP filed against the
aforesaid judgment of the Gujarat High Court.
46. In view of the above, we are not inclined to accept the contention of the
applicants that the rules of the examination insofar as they confer unfettered discretion
23
upon the U.P.S.C to fix the minimum standard for qualifying in the compulsory
subjects and insofar they do not provide for re-evaluation, are discriminatory and
violative of their fundamental rights under Article 14 of the Constitution.
47. Another relief claimed by the applicants is that the respondents should
disclose the minimum standard to be the qualifying compulsory subjects and also
disclose the in the examination rules henceforth. They have also prayed that the
respondents should declare the result in General Studies and Optionals and that the
Page 27 omitted as not legible
49. In view of the aforesaid decisions, we are of the opinion that there is no
infirmity in the rules of the examination and that the contention of the applicants that
the respondents should disclose the minimum standard to be attained in the qualifying
compulsory subjects and that they should declare their results in General Studies and
optionals, is untenable.
50. The applicants have also made a prayer that they should be allowed to appear
for the interview, or alternatively, the respondents should be directed to grant them
another chance to appear for the Civil Services (Main) Examination.
24
51. With regard to the above contention, it may be stated that the number of
chances which could be availed of by a candidate has been specified in the rules of the
examination. We do not see any substance in the contention that the applicants should
be given one more chance to appear for interview or for the Main Examination.
52. The learned Counsel for the applicants relied upon the decision in Ashok
Kumar Yadav Vs. State of Haryana, 1985 (4) S.C.C 417 at 423, in support of his
contention that the candidates should be given a chance to appear for the interview. In
this case, the Supreme Court considered the validity of certain selections made by the
Haryana Public Service Commission, the Haryana Civil Service (Executive) and other
Allied Services. While upholding the validity of the selections made, the Supreme
Court observed as follows:-
"But in view of the fact that an unduly large number of candidates were called for interview and the marks allocated in the viva voce test were excessively high, it is possible that some of the candidates who might have otherwise come in the select list were left out of it, perhaps unjustifiably. The Court therefore, directed that all the candidates who secured a minimum of 45% marks in the written examination but who could not find entry in the select list, should be given one more opportunity of appearing in the competitive examination which would now have to be held in accordance with the principles laid down in this judgment and this opportunity should be given to them, even though they may have passed the maximum age prescribed by the rules for recruitment to the Haryana Civil Service (Executive Branch) and other Allied Services."
53. The decision of the Supreme Court in Ashok Kumar Yadav’s case does not
support the case of the applicants before us. In that case the Supreme Court came to
the conclusion that 33.3% marks allocated for the viva voce test for candidates
belonging to the general category was on the high side. The Court held that in the
future selections, the marks allocated for the viva voce test shall not exceed 12.2% in
case of candidates belonging to the General category and 25% in the case of ex-
service officers. The Supreme Court suggested the above percentage of 12.2% as it
has been adopted by the U.P.S.C for Civil Service Examinations. The Supreme Court
gave directions to give one more chance to the candidates who had secured a
minimum of 45% marks in the written examination in the peculiar facts and
circumstances of the case before it. The Court was of the opinion that the number of
candidates to be called for interview should not exceed a twice or thrice the number of
vacancies to be filled. The Court referred to the same practice followed by the
U.P.S.C in this regard. However, the Haryana Public Service Commission had called
1300 candidates for interview for 199 vacancies (which represented more than 29
times the number of vacancies). This had brought about certain distortions in the
process of selection. Without setting aside the selections already made, the Supreme
25
Court gave the directions to the respondents that candidates who had secured a
minimum of 450 marks in the written examination should be given one more
opportunity in the future selections. Thus, the facts and circumstances of the case of
Ashok Kumar Yadav are not on all fours with that of the applicants.
54. The learned Counsel for the applicants contended during the arguments that
the Rules of the Examination in question have not been made unclear the proviso to
Article 309 of the Constitution. It is true that the Rules notified in the Gazette of India
Extraordinary dated 7th December, 1985 by the Ministry of Personnel and Training,
Administrative Reforms and Public Grievances and Pension do not indicate that they
were so made. To our mind, this contention is hardly relevant in the present context.
The petitioners have alleged infringement of their fundamental rights guaranteed
under Article 14 of the Constitution. Article 14 could be invoked even if the Rules in
question are in the nature of administrative instructions issued by the Government.
As we have already pointed out, the applicants have not succeeded in substantiating
the challenge grounded on Article 14 of the Constitution.
55. In the facts and Circumstances of these cases, we are of the opinion that the
applicants are not entitled to any relief prayed for by them, as in our view, the
discretion conferred upon the U.P.S.C in the matter of fixing the minimum standard
for qualifying in the compulsory subjects is not arbitrary but reasonable. The absence
of any provision in the rules for re-evaluation cannot also be considered to be
discriminatory and violative of the fundamental rights guaranteed by Article 14 of the
Constitution.
56. The learned Additional Solicitor General submits that on the receipt of the
representations, the U.P.S.C have rechecked the answer-books of the applicants and
have satisfied themselves that no errors have crept in. In order to satisfy ourselves, we
have also gone through the question papers and answer scripts of the applicants
which were produced in a scaled cover before us at the conclusion of the hearing. On
a comparison of the hand-writing in these answer-sheets with the hand-writing of the
applicants, we are satisfied that these pertain to them. We respect of the answer-sheets
of the applicants.
57. In the result these applications are dismissed with no order as to costs. A copy
of this order should be placed in each of the above mentioned six case files.
***
26
OA No.306/90 dt. 29.10.1991 – CAT Full Bench, Hyderabad)
Mr.S.S.Sambhus Vs. UOI & Others
(At Full Bench Judgments 1991-93 178)
If a person is discharging higher responsibilities satisfactorily and also allowed to cross EB in a higher post, it is unjust to ignore that fact as it clearly furnishes evidence of the merits and the suitability of that person to discharge higher duties in comparison to those who have yet to show their performance. Accordingly, the CAT had directed that the period during which the applicants shouldered the higher responsibilities should be treated as one level higher than the grading awarded to them in the lower grade.
A. Constitution of India, Article 14 – Adhoc Promotion – Selection – Appellants were working on Class III post of Surveyor Assistant (SA) Grade I – Promoted on ad hoc basis in Class I post of Assistant Surveyors, Works (ASW) – Continued as such for a number of years with some technical breaks –Allowed to cross Efficiency Bar by D.P.C. – At the time of regular selection their performance for the period they had been working as ASW was compared with their Juniors in Class III post of S.A. Grade on equal footing – Such comparison, held, illegal, irrational and violative of Art. 14 of the Constitution.
B. Constitution of India, Article 14 – Adhoc Promotion – Selection –
Applicants wer working on Class II post of Surveyors Assistant (SA) Grade I – Promoted on ad hoc basis in Class I Post of Assistant Surveyors, Works (ASW) – Continued as such a for a number of years with some technical breaks – Regular selection to the Post of ASW – How to consider the comparative assessment between the applicants and their junior for the period they (Applicants) had been working as ASW on ad hoc basis – Applicants, held, to be treated as one level higher than the grading awarded to them as ASW as per the ACRs for that period i.e., if the ACR reflects 'Good' it should be taken as 'Very good' and if very good it should be taken as 'Out standing' – Direction given to consider the case of applicants for promotion accordingly.
C. Ad hoc promotion – Selection – Held that if a person is discharging higher
responsibility satisfactorily and also allowed to cross E.B. in a Higher post, it is unjust to ignore that fact as it clearly furnishes evidence of the merits and the suitability of that person to discharge higher duties in comparison to those who have yet to show their performance.
Cases referred:
1. Vijayakumar Srivastava and others Vs. Union of India and others, 1986 (4)
SLJ (CAT) 649 2. G.N. Disaval Vs. Union of India and others, 1989 (1) (CAT) SLJ 430 3. Union of India Vs. M.L.Kappor and others, AIR 1974 SC 87 4. Dineshkumar Vs. Motilal Nehru Medical College, 1085 (3) SCC 22 (Para 4)
JUDGMENT
Shri D.K. Agrawal, Member (j) - The three original applications mentioned
above came up for consideration before the Hyderabad Bench of the Tribunal
consisting of the Hon’ble Shri R. Balasubramanian Member (Admn). By separate
27
orders, a recommendation was made to the Hon’ble Chairman for constituting a larger
Bench to decide the cases. No specific point was formulated for reference in these
cases. However, from the perusal of the referral orders it is clear that the main issue is
the modality of making a comparative assessment of the performance of two groups of
officers for promotion by selection to a higher grade. The applicants in these cases
while holding substantively Class-III posts of Surveyors Assistants Gr. I have been
officiating in Class –I posts of Assistant Surveyors (Works) for a number of years
continuously with some technical breaks of one or two days. They were, however
officiating as such on an ad hoc basis and had been promoted not by selection but on
the basis of seniority. They had been allowed to cross the efficiency bar also by the
DPC in the Class-I posts. When the question of regular selection came up against the
vacancies of ASW for 1985, 1986 and 1987 their performance as ASW also was taken
into account for the years they have been working as ASW on an ad hoc basis, while
in case of their juniors impleaded as respondents who had never been promoted as
ASW on an adhoc basis their performance as Surveyor Assistant Gr.I only in Class –
III grade was taken into account for the same period. By this process, the grading as “
good” of the applicants as Class-I ASWs was valued as lower then the grading as “
Very good” / “ outstanding” of the individual respondents as Class-III SAs and the
applicants were superseded by their juniors for regular promotion as ASW. The
grievance of the applicants is that there has been clear violation of Articles 14 and 16
of the Constitution by comparing their performance as Class-I ASWs with the
performance of their juniors in the Class-III grade of SA-I. Persons similarly situated
like the applicants before us had moved various Benches of the Tribunal against their
super session and proposed reversion from the posts of ASWs on various grounds.
The Bangalore Bench of the Tribunal in their judgment dated 22-2-91 in OAs 333 and
334 of 1990 dismissed the applications without going into the question of comparative
assessment on the basis of performance at two distinctly different levels. This point
had neither been raised in the applications nor discussed in the judgment. Similarly,
the Principal Bench of the Tribunal was moved by another two adhoc ASWs similarly
placed as the applicants before us in O.As. 690 of 1990 and 693 of 1990, on identical
grounds taken up before the Bangalore Bench viz., (a) juniors were included in the
panel, (b) ineligible persons were considered and, (c) vacancies of 1986 and 1987
were clubbed. These two applications were also dismissed by rejecting the grounds
taken up. The applicant who moved the Madras Bench of the Tribunal in O.A No.
246 of 1990, however specifically took up the ground that by comparing his
performance as ASW, a class-I, post with that of his juniors, as SA, Class-III post,
unequals have been treated as equals in violation of Article 14 of the Constitution.
The Madras Bench found that there has been such a violation, allowed the application
28
and directed a review DPC to ‘dual assesement’ as prescribed by the Department. The
dual assessment Contemplated was to grade the performance of the ad hoc promotees
not only in the grade of ASW in which he was actually functioning but simultaneously
also in his substantive grade of SA which he was holding in a regular manner though
not actually working therein during the period of ad hoc officiation. The Hyderabad
Bench of the Tribunal in their order of reference observed as follows:
“Assessment is possible only on actual performance irrespective of in the substantive post or in ad hoc higher post. Any other assessment cannot be objective. It was for this reason that the latest order of the concerned Department (Department of Personnel laid stress on assessment in the current grade held. The letter dated 16-7-82 of the Chief Engineer, Southern Command is only a domestive innovation and its feasibility is doubtful. It is also seen that the Jabalpur Bench (although in a different case where there might not have been such a letter as the one dated 16-7-82 of the Chief Engineer Southern Command) did not suggest such a dual assessment as remedy. There were only two persons whose performance was to be compared and the Jabalpur Bench directed that the performance during the period when both held the same grade of posts should be compared. “ Moreover, as in the case before us where the applicant had been holding the higher ad hoc charge for well over 5 years at the time of the DPC, assessment of the performance in the higher capacity cannot be termed as harsh. Any handicap due to the burden of the higher charge can only be in the early years and had been overcome as seen from the claim of the applicant that he had been doing well in the higher ad hoc charge. “ For the above mentioned reasons, we are unable to agree with the Madras Bench and are inclined to fall in line with the decision of the Delhi and Bangalore Benches. “ The Full Bench of this Tribunal has decided in the case, Vijaya Kumar Srivastava and Others Union of India and Others, 1986(4) SLJ (CAT) 649, that where there is difference in view between Benches, a larger Bench is called for. In our opinion, a larger Bench is required to adjudicate the cases before various Benches and accordingly refer the cases to the Hon'ble Chairman for constituting a larger Bench. In the meantime, the interim order dated 11-7-90 given by this Bench may continue although it will further prolong the ad hoc promotions which have created this avoidable situation’’.
2. The learned Members of the Hyderabad Bench were more inclined to place
reliance on OM No.F 22011/5/86-estt. (D) dated 10-3-89 which inter-alias reads as
follows:-
“ Where an officer is officiating in the next higher grade and has earned CRs in that grade, his CRs in that grade may be considered by the DPC in order to assess his work, conduct and performance, but not extra weightage may be given merely on the ground that he has been officiating in the higher grade.’’
29
From the above, it appears to us that the Hyderabad Bench of the Tribunal disagreed
with the Madras Bench on the question of ‘dual assessment’ and also thought that it
will not be improper to compare the performance of the applicants as ASW with the
performance of others as SA and agreed with the decision of Delhi (principal) and
Bangalore Benches in so far as rejecting the application goes. Since as stated above,
neither the Delhi nor the Bangalore Bench considered the feasibility of the ‘ dual
assessment’ or the vires of comparing on equal footing the quality of performance of
the applicants at higher level of ASW with that of their juniors at lower level SA, the
orders of these two Benches are not at all helpful in resolving the basic divergence
between the Madras and the Hyderabad Benches on the modality of comparative
assessment of merits between officers working on two distinctly different and
hierarchical planes, one (SA) lower and the other (ASW) two levels higher.
3. The grievance expressed in these three applications is identical. The facts are
also almost identical with slight variations in dates. The three applicants were
promoted on ad hoc basis from the post of Surveyor Assistant Grade-I to the post of
Assistant Surveyor of Works on ad hoc basis. The applicant namely, I. Rama Rao
(applicant in O.A No. 308/90) was promoted on 18-2-1983. The two other applicants
viz. S.S. Sambhus and R.Y. Deshmukh (applicants of O.A Nos. 306 and 307 of 1990
respectively were promoted on 11-4-1984. Their grievance is that although they are
senor to the respondents 5 to 9 in O.A Nos. 306 and 307 of 1990 and also senior to the
respondents 5 to 10 in O.A No. 308/90 in the grade of Surveyor Assistant Grade-A,
they were wrongfully superseded by them in the selection for the post of Assistant
Surveyor of Works by the review D.P.C held for the vacancies of the years 1981 to
1985 and by the DPC held for the vacancies for the years 1986 and 1987. The relief
prayed by them is that the orders of promotions dated 7-3-1990 and 8-3-1990
promoting their juniors on a regular basis are without any valid principles and
consequently be held as arbitrary, illegal and irrational and the respondents may be
directed to consider the applicants for promotion on regular basis as Assistant
Surveyor of Works giving them seniority over and above their juniors with all
consequential benefits. In this connection, an attempt was made, in the written and
oral arguments to agitate the seniority of the applicants in the grade of Surveyor
Assistant on the basis of de-merger of the two cadres viz. Surveyors and Engineers,
vide the order of the Government of India, Ministry of Defence No.
PC/64287/EIB/346/D (W.III) dated 31-3-1978. However, there is neither any
pleading nor a specific prayer to enable us to go into the question of inter-seniority in
the grade of the Surveyor Assistant. The individual respondents impreaded have been
conceded by the department to be junior to the applicant as SA, hence there can be no
30
'lis’ of seniority against them. The Department has unequivocally stated that these
respondents have been selected inspite of their being junior to the applicants because
they have been adjudged to be more meritorious than the applicants who have been
excluded inspite of their seniority over these respondents. The ‘lis’ is therefore
clearly not on comparative seniority but on comparative merit. The applicants have
not even indirectly challenged the seniority list of SAs by specifically mentioning
names of their seniors who would be junior to them if the seniority list were correctly
prepared. They have also not impleaded such SA-I who though placed above them in
the seniority should have been placed below them in that list. Therefore, we find it
neither necessary nor proper to adjudicate upon the controversy and relief if any in the
mind or arguments on behalf of the applicants about their inter-se seniority in the
grade of Survey Asst. Gr.I, we have, therefore, confined ourselves strictly to the
pleadings and the reliefs prayed for which concern only the super session of the
applicants by their juniors to the post of Assistant Surveyor of Works by the review
DPC and regular DPCs in respect of the vacancies for the years 1981 to 1987. We
may mention at this stage that the impleadment of the respondents 5 to 9 in OAs 306
and 307 of 1990 and the Respondents 5 to 10 in OAs. 308 of 1990 further make us
believe that the applicants are aggrieved only against them on the ground that although
they are junior to them yet they have been selected by the review DPC or DPC for the
posts of ASW while the names of the applicants have been omitted to be placed in the
select list for the reasons which are violative of Article 14 of the Constitution of India.
The main contention of the applicants is that it was not proper for the DPC to compare
their assessment in Class-I post, they were holding on ad hoc basis, with the
assessment in Class-I post they were holding on ad hoc basis, with the assessment of
the others working in Class-III posts and that treating of ‘unequals’ as equal amounted
to discrimination, and is violative of Art.14 of the Constitution. Thus, the limited
controversy which we are called upon to resolve is as to how an officer working
resolve is as to how an officer working on can ad hoc basis in a higher post for a
certain number of years relevant for the purpose of regular promotion should be
assessed, especially when he is compared with those holding the lower substantive
posts in the feeder cadre and having had no occasion to shoulder the responsibility of
the higher post. The principle underlying Art. 14 of the Constitution requires that
when several persons competent for a post or grade, their merit assessment should be
by the same yardstick and of same character otherwise it may result in discrimination
and the selection process may be violative of the principles of equality enshrined in
Art. 14 of the Constitution. We make it clear that the promotions in accordance with
the Recruitment Rules for the posts of ASW being by selection on merits, ad hoc
promotion perse of applicants made on the basis of seniority alone cannot confer on
31
them any right of regularization ‘dehor’ those Rules. They have to be screened by
regularly constituted D.P.C in accordance with law before they can be regularly
appointed with prospective or retrospective effect. It is another matter whether after
their regularization, their previous ad hoc service will count for seniority or not.
Further, it is not the case of the applicants that because they are senior to the
individual respondents who have been empanelled, they should also be empanelled.
The case of the applicants rests mainly on the erroneous method of comparative
assessment of the merits of the applicants vis-a-vis their junior who are only working
in Class-III posts while the applicants were working in Class-I posts when their merits
were judged on the basis of such performance.
4. Coming back to the facts of the case, the applicant, I. Rams Rao in OA 308/90
was promoted on ad hoc basis as Assistant surveyor of Works (ASW) on 18-2-1983
and the other two applicants namely, S.S Sambhus and R.Y Deshmukh in OAs 306
and 307 of 1990 were promoted as ASW on 11-8-84. The respondents 5 to 9 in OAs
306 and 307 and the respondents 5 to 10 in OAs 308 of 1990 have been promoted on
regular basis as ASW for the vacancies of the year 1986 on the recommendations of
the DPC. Thus, the super session of the applicants has bacon place in respect of the
vacancies for the year 1986. The question, therefore, to be considered by us is as to
whether they were rightly superseded or did the DPC arbitrarily supersede the
applicants as alleged by them. The sole ground for branding the selection as arbitrary
is that the applicants and the respondents were not placed on equal footing that is the
assessment of the applicants was made on their performance while they were working
on the post of ASW while on the other hand the assessment of the respondents was
made while they were working on the post of Surveyor Assistant Grade-I. The
factual position is that for making selection in respect of the vacancies of the year
1986, the assessment for the preceding five years 1980-81, 1981-82, 1982-83, 1983-84
and 1984-85 was taken into account for comparison of the merits of the respective
eligible candidates. Consequently, it would mean that for three years i.e., 1980-81,
1981-82, 1982-83 the applicant in O.A. Nos. 306 and 307 of 1990, as well as the
respondents were assessed on equal footing in respect of their work on the post of
Surveyor Assistant Grade-I. Thus, it is only with respect to the years 1983-84 and
1984-85 in the case of applicant of OA 308/90 and 1984-85 in the case of the other
applicants that the assessment while working on the post o Assistant Surveyor of
works on adhoc basis and the assessment of the respondents while working in the
feeder grade of Surveyor Assistant Grade-I was taken into account by D.P.C. As such
the anomaly, if any has arisen because of the mistake on the part of the DPC to
consider the comparative merit of the applicants and the respondents in the years
32
1983-84 and 1984-85 at par while they were working in different grades, the
applicants shouldering the responsibility of Class-I posts while the respondents were
still working in the Class-III posts of Surveyor Assistant Grade-I. Consequently it is
alleged that it cannot be said to be a proper and fair comparative assessment for the
purpose of selection. Reference has been made to the case of G.N Disaval Vs. Union
of India and Others. 1989 (1) (CAT) SLJ 430 decided by the Jabalpur Bench of this
Tribunal where the comparative gradation assessment of the Assistant Engineers was
to be made for promotion to the post of Senior Engineer. However, in the process, no
notice was taken of the fact that the Respondent No.3 therein at the time of
comparative assessment was officiating on the post of Senior Engineer. In the
circumstances, following the decision rendered in the case of the Union of India
Vs.M.L. Kapoor and others, AIR 1974 SC 87, wherein it was held that the two
contesting candidates were not judged equally and therefore consequential
discrimination was attracted, the Jabalpur Bench, came to the conclusion that
comparative assessment of the performance of the petitioner and the Respondent No.3
therein may be conducted only on the basis of their record as Assistant Engineers for
an equivalent number of years ignoring the general rule to consider the period of
preceeding five years usually adopted for gradation assessment of officers. The
Madras Bench of the Tribunal in O.A 243/90 while dealing with an identical case as
these cases of Surveyor Assistants and Assistant Surveyor of works also came to the
conclusion that comparison of merits of the candidates on the post of SA Gr.I and
ASW is bad in law and therefore directed the Department to constitute a review DPC
after obtaining from the competent reporting authority the dual assessments as
prescribed by the Department. The theory of dual assessment has been inferred on
the basis of instructions contained in order No. 30599/P/EIR, dated 16-8-1976 issued
by the Chief Engineer, Southern Command, Pune which reads as follows:
“ It will be seen from the letter dated 16-8-76 that the present grade and the ad hoc appointment held by the individual are to be shown separately in the ACR forms. As such the performance of the individuals in the present grade and ad hoc appointment should also be reflected in Part-II of the CR separately, under ‘General Remarks.” It follows that their fitness for promotion to higher grades, to be show under part-III, should also be reflected separately. “ Recommendations/remarks about the outstanding work of the individual to be shown in Part-III should be given with reference to both the present appointment and the ad hoc appointment separately.’’
There is yet another letter dated 16-7-1982 from the Chief Engineer, Southern
command to all Zonal Chief Engineers and the following extracts thereof were also
quoted in the said judgment of the Madras Bench. They are as follows:-
33
“2. Instructions were issued under this HQ letter quoted above that assessment/recommendation for promotion in respect of those individuals holding ad hoc appointments should be given, both in respect of their regular lower grade and the higher ad hoc grade held by them, separately under the General Remarks column by the Reporting initiating officers and in Part-III/IV (as the case may be) by the Reviewing Officers. The said procedure is necessary, in view of the following:- “(a) Ad hoc promotions are made strictly on seniority cum fitness basis, and not based on seniority –cum-merit as for the regular promotion;
“(b) Ad hoc promotees are considered for regular promotion along with their juniors not holding any higher ad hoc appointments and without giving any special consideration for their higher ad hoc status; “(c) ACRs of juniors not holding ad hoc appointment may have a better write up on account of their long service in the same grade post. In the case of those holding ad hoc appointments, if their ACRs are to be written relating to the ad hoc grade only, they may not be getting a fair chance to prove their worth being new to the ad hoc higher grade. This will result in a disadvantageous position to those holding ad hoc appointments in regard to promotions and order of Selection in the panel, based on seniority-cum-merit.’’
5. Relying on the above cited quotations as well as the principle of law that the
comparative assessment of merits of two categories of persons, one placed in SA
Grade-I and the other posted as ASW is violative of Article 14 of the Constitution, the
Madras Bench remanded the case for constitution of the review DPC directing the
competent reporting authority to proceed with the ‘ dual assessments’.
6. The Division Bench of the Hyderabad (supra) disagreeing with the opinion of
the Division Bench of the Madras Tribunal referred these three cases to Hon’ble
Chairman for Constitution of Larger Bench. It is in that manner that we are called
upon to decide these petitions.
7. The respondents 5 to 9 in OA 306 and 307 of 1990 and respondents 5 to 10 in
OA 308 of 1990, despite notice, have not appeared before us. Thus, we have been
deprived of the benefit of their address. However, Shri D.S. Inamdar and V.L Desai,
applicants in two cases before the Bombay Bench having similar grievance as the
applicants, of being superseded by juniors, appeared and addressed us contending that
it was unfair to have been superseded despite their satisfactory performance on the
post of ASW for number of years. They also brought to our notice that one of them
had been even made to work in still higher post i.e, Surveyor of Works on account of
34
his good performance as ASW. It was also contended by them that they were mid do
cross their Efficiency Bar (EB) in the Class-I grade of ASW on the basis of the
recommendation of the DPC like the applicants and that in such circumstances it
requires serious thought whether justice has been denied to them or not. However, we
do not have before us the applications filed by them before the Bombay Bench.
Therefore, we cannot apply our mind to the pleadings contained therein, although we
have permitted them to address us on account of the fact that they were similarly
placed persons and having identical grievance and particularly in view of the fact that
our decision might affect them too.
8. We are fully convinced that comparing the quality of performance of a
candidate at the class-III level of S.A. with the quality of performance of another at the
class-I level of ASW on equal footing will be comparing the incomparable and will be
not only illegal, irrational but also violative of article 14 of the Constitution. To this
extent we agree entirely with the Madras Bench of the Tribunal. Since neither the
Principal Bench nor the Bangalore Bench of the Tribunal has gone into this basic
infirmity of the assessment process, the judgments in those cases which are based on
entirely different grounds are of no assistance to us. The Allahabad Bench of the
Tribunal in C.A No. 336/1990 (V.N. Dutta V. Union of India & Ors.) However, took
the view that comparative assessment of performance based solely on the C.R. entries,
irrespective of the level on which the performance was discharged is in accordance
with law. One of us was a party to that judgment. However, the said judgment is
under review and the operation of that judgment has been stayed by the Bench itself.
In the instant case the class-III post of S.A is two levels below the Class-I post of
A.S.W. The enormity of hostile discrimination suffered by the applicants in these
cases calls for serious consideration. One of the applicants in the Bombay cases stated
that he an ad hoc ASW, wrote the CR of one of his juniors who was working as SA
under him, and now that junior would be working as ASW and he has been reverted as
SA. Such a situation is an anathema to service jurisprudence and discipline. Just as
the quantity of water will reach a higher level in a tumbler of narrow girth but a lower
level in a tumbler of wider girth, and the lower level does not signify a lower quantity
of water as compared to the water in the narrow tumbler, similarly ‘ good’
performance in a Class-I post as compared to ‘very good’ performance in a Class-III
post does not signify lesser talent of the incumbent in the higher post. We feel that
para 2-2-1(d) pf the Dept. of Personnel’s OM dated 10-3-89 cited earlier needs to be
reviewed and modified to the extent it purports to equalize the yardstick of assessment
of performance at two different levels.
35
9. We are however of, the opinion that the modality of “ dual assessment’’ as
endorsed by the Division Bench of the Tribunal at Madras in neither practicable nor
will it be proper. The reasons are obvious. The principle of dual assessment
endorsed by the Madras Bench of the Tribunal cannot be based on an objective
assessment of the work actually performed by the candidates. The of writing ACRs is
to objectively judge the performance of the candidates on the post they are made to
work in the year in question. In the case of those who had already been made to
officiate on the post of ASW, the dual assessment of their performance on the post of
SA Grade-I when they were actually working as ASW can be based on imagination
only. It cannot be an objective assessment. Thus, the very purpose of the assessment
is likely to be defeated. Therefore, the Officers entrusted with the task of making the
assessment are likely to be substantially handicapped and hence misdirected in their
assessment, because such assessment could only be a hypothetical assessment. We
have carefully given our thought to the letters of the Chief Engineer, Southern
Command referred to above, dated 16-8-1976 and 16-7-1982 which envisage the
system of dual assessment. We are of the view that such an assessment as suggested is
likely to be arbitrary resulting in further discontentment amongst eligible candidates.
Besides, such a modality adopted in one command (Southern) of the Army, is likely to
create problems in an All-India cadre unless it is adopted on an all India basis. The
alternative mode expressed by the Jabalpur Bench about taking into account C.R.
entries in similar posts for equivalent number of synchronous years was also debated.
The facts as they stand are that the ad hoc appointments have been made from the year
1982 and on wards. The controversy is about the selections for the vacancies of the
years 1985-1986 and 1987. Thus, if we direct that the confidential roll entries of
officer under consideration for equivalent number of years be taken into account on
similar posts, it would mean that in some cases, the performance of the officers on the
post of feeder cadre i.e., SA Grade-I should be ignored for complete five years
preceding the year of vacancy for which they are being considered. For example, if
an officer is being considered to a vacancy for the year 1986, the gradation assessment
of the officers working on ad hoc basis on the post of ASW may have to be ignored
for four years preceding the year vacancy. It may give rise to a grievance to an officer
of the feeder cadre i.e., SA Grade-I whose performance might have been found very
good or ‘ Outstanding’ during the said period of four years but ignored under the
scheme. Having taken up the individual case of the applicants and the respondents
imp leaded in these three applications, we have come to a conclusion that their
comparative assessment can be made on the basis of actual performance in the posts of
SA Grade-I for three years i.e., 1980-81, 1981-82 and 1982-83 in the case of the
applicant in O.A. 308/90 and for four years i.e., 1980-81 to 1983-84 in the case of the
36
other applicants as mentioned above. The controversy thus narrows down with regard
to the comparative assessment for the years 1983-84 to 1984-85 (in the case of the
applicant in OA.308/90 and 1984-85 in the case of the applicants) when they were
working not as SA but as ASW. In this connection, a definite statement was made at
the Bar on behalf of the applicants that the applicants were found fit to cross the EB on
the post of ASW and that some of them were also made to work as SW (a post still
higher to the post of ASW). Thus, there remains no doubt in our mind that the
performance of the applicants on the post of Assistant Surveyor of Works was found
satisfactory and upto the mark. The only reasonable and just suggestion that in our
opinion can be made to meet the ends of justice in the circumstances of the case is that
for the period during which the applicants shouldered the higher responsibility of the
higher Class-I posts of ASW/SW their gradation as SA should be treated as one level
higher than the grading awarded to them as ASW as per the ACRs for that period.
That is, if the ACR as ASW reflects ‘good’ it should be taken as ‘very good’ and if ‘
very good’, then it should be taken as ‘outstanding’. In this manner they are placed
on equal footing for the purpose of assessment of comparative merits. With this
modification in the grading, the comparative assessment of the merits of the
candidates may be made by the selection committee and they may be accordingly
considered for empanelment.
10. We may mention here that we are of the opinion that if a person is discharging
higher responsibilities satisfactorily and also allowed to cross E.B. in a higher post, it
is unjust to ignore that fact as it clearly furnishes evidence of the merits and the
suitability of that person to discharge higher duties in comparison to those who have
yet to show their performance. We may also refer in this connection to the principle
laid down in the judgment of the Supreme Court in the case of Dineshkumar V.
Motilal Nehru Medical College, 1985(3) SCC 22 (para 4). Their Lordships of
Supreme Court laid down as follows:-
“ It would be wholly unjust to grant the admissions to students by assessing their relative merits with reference to the marks obtained by them not at the same qualifying examination where standard of judging would be reasonably uniform but at different qualifying examinations held by different State Government or Universities where the standard of judging would necessarily vary and not be the same. That would indeed be blatantly violative of the concept of equality enshrined in Article 14 of the Constitution.”
11. In the result, we allow these applications in part and direct that a Review DPC
duly constituted should consider the case of the applicants for promotion to the post of
ASW for the vacancies occurring in the years when they were eligible and entitled to
37
be considered for promotion in the light of the observations made above in the body of
the judgment. If on the basis of the assessment, the applicants are found entitled for
regular promotion, they should be so promoted even by creation of supernumerary
posts and granted all consequential benefits. Action on the above lines should be
competed within a period of four months from the date of communication of this
order. We make it clear that in the meantime, the applicants shall not be disturbed
from their position. The parties are left to bear their own costs.
***
38
PRINCIPAL BENCH : NEW DELHI OA NO.747/92 D.D. 24.4.1992
The Hon'ble Mr. P.K. Kartha, Vice-Chairman (J) The Hon'ble Mr. I.K.Rasgotra, Member (A)
Shri N.K.Sharma – Applicant Vs. Union of India - Respondents
Over aged candidate demanded for entertainment of his application for Civil Services Examination. Held - The Rule for the Civil Services (P) Examn, are statutory in nature and not open to challenge unless they are irrational or arbitrary. The framing, re-framing, changing and re-changing the rules to meet the needs of the situation lies exclusively in the domain of the executive and is not open to challenge unless there is a proven case of malafide. Hon'ble Mr. I.K.Rasgotra, Member (A) JUDGEMENT Shri N.K. Sharma has filed this Original Application under Section 19 of
the Administrative Tribunals Act, 1985, aggrieved by the decision of the respondents
conveyed in F1/5/91-E-I(B) issued by the Union Public Service Commission (UPSC
for short) and notified in Employment News of 28.12.1991-3.1.1992, according to
which the Respondent No. 2, viz. U.P.S.C. has allowed the candidates within the age
group of 21-23 years to appear in the Civil Services Examination 1992 and increased
the number of chance from four to five. The date of birth of the applicant is 10-6-
1957 and he had appeared in the Civil Services Examination 1981, 1982, 1983 and
1990. The applicant, therefore, on the crucial date viz. 1-8-1992 would be over 35
years of age. He apprehends that in the circumstances in which he is placed, the
Respondent No. 2 would reject his Application for want of eligibility in respect of age,
thereby preventing him from taking the Civil Services Examination, 1992. The main
ground of attack of the applicant is that in the year 1990 also the respondents had
made changes in respect of age limit and in respect of number of chances to be availed
of by the candidates for that particular year only. This was successfully challenged in
the various Benches of the Tribunal and the applicants therein although had crossed
the age 31 years, were allowed by the Tribunal to appear in the Civil Services
Examination, 1990.
The learned counsel appearing for the applicant drew our attention to an
interim order passed by the Lucknow Bench of the Tribunal in OA 56/92 and OA
58/92, allowing the applicants therein to appear in the examination by directing the
39
respondents to entertain their applications even if they crossed the age of 33 years as
on 1-8-1992.
2. We have heard the learned counsel for the applicant and perused the record
placed on the judicial file. In our opinion, the issues of law and fact of matter brought
up before us are distinguishable and, therefore, we are not persuaded to accept that our
interference is warranted with the proposed C.S.E., 1992 on the ground. We are also
not aware of the full facts and circumstances in which the Lucknow Bench of the
Tribunal had given an interim order in O.A., referred to in the preceding paragraph.
The Rules for Civil Service Examination are statutory in nature and not open to
challenge unless they are irrational or arbitrary. The framing, reframing, changing and
rechanging the Rules to meet the needs of the situation lies exclusively in the domain
of the executive and is not open to challenge unless there is a proven case of malafide.
The administrative action is subject to control by judicial review under three heads:-
“(1) illegality, where the decision-making authority has been guilty of an error of law, eg by purporting to exercise a power it does not possess; (2) irrationality, where the decision-making authority has acted so unreasonable authority would have made the decision; (3) procedural impropriety where the decision-making authority has failed in its duty to act fairly.
The procedural changes made in regard to the number of chances and the age
limit from time to time have been made by the respondents, keeping in view all
relevant factors and they have been made equally applicable to all equally placed
persons. Such a classification has been held to be permissible within the framework of
the Constitutional provisions, as it is meant to advance larger social objective. The
applicant has not been able to demonstrate to our satisfaction that the classification
made by raising the age and by increasing the number of chances is bad in law,
irrational and therefore illegal. We are, therefore, not inclined to favour judicial
interference in this matter.
In the facts and circumstances of the case the application is bereft of merit and
is dismissed at the admission stage itself.
***
40
PRINCIPAL BENCH : NEW DELHI OA 358/93
D.D. 21.5.1993 The Hon'ble Mr. A.B.Gorthi, Member (A)
The Hon'ble Mr. C.J.Roy, Member (J)
Sandeep Gupta – Applicant Vs. Union of India – Respondent The candidature of the applicant for Engineering Services Examination 1992 was cancelled as he did not submit the proof of passing qualifying examination by the prescribed date. Held – The contention that natural justice is denied to him by not sending notice prior to the cancellation of his candidature is not correct. The natural justice is not ritual, a byword or a catchword where it is violated, we will invoke otherwise not. Hon'ble Member (J) Shri C.J.Roy JUDGEMENT
This application has been filed by Shri Sandeep Gupta under Section 19 of the
Administrative Tribunal act, 1985, challenging the cancellation of his candidature for
the Engineering Service Examination, 1992.
2. According to the applicant, vide notice dated 15th February, 1992, UPSC
announced holding of a Combined Competitive Examination for recruitment to
various Engineering Service/ posts and the last date of submission of applications was
13th April, 1992. At that time he was studying in the last/final semester of the 4-year
Degree Course at Indian Institute of Technology, Delhi and the final examination was
to be held in May, 1992. He submits that he became eligible for appearing in the said
examination in accordance with the rules, but for the sheer slip on his part, he could
not submit the proof of qualifying examination much before 7-12-92. The
examination was held in August 1992 and he appeared in the said IES Examination,
and the result of which was published by the UPSC in the Employment News of 6-12
February, 1993 (Annexure-A). But his name did not appear in the Employment due to
the fact that he had not submitted the proof of his having passed the qualifying
examination by 7-12-92 as is clear from the letter of the UPSC dated 11-1-93, thereby
resulting in cancellation of his candidature. His representations to the authorities did
not elicit any reply. He has prayed that his candidature be not cancelled merely on the
ground of his sheer slip to intimate the factum to the UPSC of his having passed the
qualifying Examination by 7-12-92 and to direct the respondents to declare the result
of the written examination for appearing in the interview starting from middle of
February, 1993 and grant him all consequential benefits.
41
3. The respondents have stated that the applicant was supplied with a copy of
the Notification issued by the Ministry of Railways (Railway Board) as well as a copy
of the notification of the UPSC, in which the rules made for the examination were
clear. However, in the Rules, a provision has also been made under Note-1, below
Rule-6 by the Ministry of Railway (Railway Board) to admit the candidates who had
not acquired the prescribed qualifications at the time of applying for the examination
to sit for the written part of the examination. This enabling provision in the rules
which is conditional, is extracted below;
“A candidate who has appeared at an examination the passing of which would render him educationally qualified for this examination but has not been informed of the result may apply for admission to the examination. A candidate who intends to appear at such a qualifying examination may also apply. Such candidates will be admitted to the examination if otherwise eligible, but the admission would be deemed to be provisional and subject to cancellation, if they do not produce proof of passing the examination as soon as possible, and in any case not later than 7th December 1992. The same provision which was made in the rules notified by the nodal Ministry has been repeated in Annexure-I of the UPSC Notification for the benefit of the candidates. The candidates who had not acquired prescribed degree at the time of applying for the examination are well aware of instructions to submit the proof of their passing the qualifying examination to UPSC by the prescribed date, at the time of applying for the examination itself.’’
4. The applicant has also filed a rejoinder more or less reiterating and asserting
the same views that news magazines like Employment News and Rozgar Samachar
are not normally read. The UPSC could have sent the information to the candidates
individually by Registered post and also an important notice like remainder and notice
of cancellation of the candidature in the case the relevant information is not supplied
by 7-12-92. He also states that the result of the written examination was provisional
and the certificate in proof of qualifying the examination in original was to be
submitted at the time of interview. Which is due to be held after cancellation of the
candidature of the applicant. The applicant submitted his proof by way of sending a
copy of the Engineering Degree dated 24-7-92 vide his letter dated 18-1-93.whereas,
the result of the written examination has reportedly been notified by UPSC on 27-1-93
and published in the Employment News dated 6-12- February, 1993. Thereby, he
questions the UPSC stand that the applicant’s demand would amount to reoperating
and redeclaring the results of the written part of the examination is only untenable.
5. We have heard the learned counsel for both parties and perused the
documents on record and the UPSC records pertaining to the applicant.
42
6. It is pertinent to mention that the applicant has applied for the IES
Examination conducted by the UPSC. Admittedly, he is well aware of the fact that he
has to submit the application along with all the required certificates well before time
prescribed by the UPSC i.e., 7-12-92 and failing to do so, would render him to
cancellation of his candidature. In fact, he admits that he should have done it, but for
the sheer slip, he could not do so. We have seen the letter dated 5-3-93 from the
UPSC addressed to the applicant, in which, it is stated in Annexure-F at para-5 that:-
"5. In accordance with the Instruction to Candidates, a copy of which was supplied to you along with blank application form and in terms of the conditions of admission communicated to you in the admission certificate permitting you to take the above examination provisionally, you are required to submit the fallowing certificates:-…………….” 6. In the event of your inability to produce the originals of the certificates mentioned at (a) and (b) above, you should submit an explanation for their non-submission and should bring with you at the time of your interview the following alternative certificate which the Commission may consider on merits:-…..…………..”
7. It is also clearly mentioned in the above letter that failing to comply with the
above requirements, the applicant may not be interviewed and that the documents
called for in para 5 above must be submitted as soon as possible even if he has
submitted the alternative certificate mentioned in para 6 above.
8. Annexure-A to the application of the UPSC also states as follows:-
“ 3. The criteria has been applied uniformly to all the candidates who had appeared at the written examination. The question of issuing a show cause notice to those candidates who failed to submit their proof of passing by the prescribed date before canceling their candidature does not arise since the candidates had appeared for the examination under an obligation on their part to submit their proof of passing the qualifying examination by the prescribed date. However, for the benefit of such candidates, the condition has been reiterated through advertisements in “ Employment News” and some other leading New Papers.
4. In view of the above, revival of the decision already communicated to you vide this office letter of even no. dated 11-1-93 is not called for.’’
9. The learned counsel for the applicant vehemently argued that the injustice
will be caused if the application is not allowed. We feel that the applicant is well
aware of the last date and instead of sending it in time, argued that no prejudice will be
caused to the UPSC if the case is considered favourably now. The contention that
natural justice is denied to him by not sending notice prior to the cancellation of his
43
candidature is not correct. The natural justice is not ritual, a by ward or a catchword.
Where it is violated, we will invoke, otherwise not. In this case, there is no violation
of natural justice. The UPSC is not bound to inform the applicant by Registered post
letter, when the applicant has not fulfilled the mandatory procedure as laid down in the
instructions of sending a copy of the educational qualification in time. The applicant
appeared in the IES Examination in lieu of an interim order passed by this Tribunal on
2-3-93. This interim order does not automatically entitle the applicant for
consideration in his favour. When the conditional procedure is not fulfilled, it can’t be
brushed aside. The Tribunal cannot show misplaced sympathy which may result in
opening of flood gates to several persons by way of similar circumstances. Further, no
direct ruling or rule is shown to us in connection with the late submission of required
certificates to UPSC and its consequential acceptance in support of the case of the
applicant nor rule 6 is challenged in the relief claimed by the applicant.
10. In the circumstances, having not fulfilled the mandatory provisions of
sending the application in accordance with the instructions, we feel that the applicant
has not made out a case for our interference. The application is, therefore, dismissed,
with no order as to costs.
***
44
JABALPUR BENCH, JABALPUR OA 219/1995
D.D. 15.05.1995
Hon'ble Shri R.Hariharan – Member (A)
N.R.Banerjee and another – Applicants vs. UOI and others – Respondents
A. Object of Writing Confidential Report has been explained. First it should give an opportunity to the officer to remove deficiencies and to inculcate discipline. Secondly it serves improvement of quality and excellence and efficiency of public service. B. Mere inclusion of name in the list does not confer any right in terms of appointment but the authority must act reasonably, fairly and in public interest and omission thereof should not be arbitrary. C. Select lists should be prepared in advance against anticipated and clear vacancies and the CRs for the year prior to the year of vacancies should be considered. In accordance with the directions of the Supreme Court the Model Calendar for convening of DPCs has been issued by the DOPT.
J U D G E M E N T
This application has been filed aggrieved with the non-empanelment of the
applicants in the panel for 1994-95 for promotion to the post of Senior General
Manager in the grade of Rs.7300-7600 of the Indian Ordnance Factory Service vide
interim order dated 21.04.1995 the operation of the impugned panel was stayed per by
this Tribunal on 05.05.1995 when the case was being heard on the question of
vacation of stay, the learned Additional standing counsel Shri Ramesh Darda
requested that the case may be heard finally as the respondents were armed with all
the relevant records and the matter was urgent. The counsel for the applicant also
agreed that the case be listed for final arguments after adjoining the case for a day.
Accordingly, the case was finally heard on 06.05.1995.
2. The applicants, namely, Shri. N.R. Banerjee and Shri. V.R. Shivkumar are
presently working as General Manager Gun carriage Factory, Jabalpur and General
Manager Vehicle Factory, Jabalpur respectively. They have alleged that the two posts
held by them are earmarked posts in the grade of Senior General Manager and they
have been positioned in these posts by virtue of their seniority and performance. The
main ground advanced by them is omission from the panel is due to the enlargement
of zone of consideration by clubbing the vacancies for calendar years 1994 and 1995.
45
They further alleged that three vacancies arose in each of these years but the
respondents have considered only four vacancies so as to make the zone of
consideration to 12 for both years put together instead of 10 each for these two years
taking into account 3 vacancies for each year.
3. The respondents on the other hand contend that there is an error in the
computation of vacancies by the applicants. They point out that they have been
following the financial year and not calendar year as alleged by the applicants for
computing the vacancies right from 1990 under the instructions from the Union Public
Service Commission (short UPSC) whose Chairman/Member is to preside over the
Departmental Promotion Committee (in short DPC). They further point out that four
vacancies during the financial year 1994-95 occurred on 22.08.1994,
03.09.1994,06.10.94 and 01.03.95. They contend that two vacancies taken into
account by the applicants occurring as on 31.03.1995 due to the retirement of Shri.
A.K. Neogy, Sr. General Manager and Shri. J.K Kawirea, Member, cannot be taken
into account for the financial year 1994-95 as the Officers retired only o the afternoon
of 31.03.1995 and the vacancies arose only from 01.04.1995.
4. After hearing the learned counsel of parties at length, the Tribunal come to the
conclusion that the respondent were correct in following the financial year as it was
consistently followed from 1990 and it also stands endorsed by the Department of
Personnel & Training's OM No. 22211/9/89/Estt(D) dated 17.10.1994. The
computation of four vacancies by the respondents was also held to be correct
excluding the two vacancies occurring on 01.04.1995.
5. In the course of arguments, the proceedings of the DPC held on 15.03.1995
came up for scrutiny by the Tribunal. The proceedings did not disclose how the over
all grading of the officers had been arrived at the officers. The proceedings also did
not disclose the year upto which the ACP's of the 12 officers were considered.
However, a perusal of the file containing the DPC proceedings disclosed that ACRs
were considered up to the year 1993-94. This has also been confirmed by the
respondents in their written submissions dated 21.05.1995 filed in pursuance of the
directions of the Tribunal dated 06.05.1995. They have, however, contended that this
has been done correctly relying on para 6.4.3. of the guidelines on DPC circulated vide
Department of Personnel an Training's OM. No. 22011/5/86-Estt. (D) dated
10.04.1989 (Annexure- A-4). The said paragraph reads as follows:-
"6.4.3 for the purpose of evaluating the merit of the officers while preparing years-wise panels, the scrutiny of the record of service of the officers should be limited
46
to the records that would have been available had the DPC met at the appropriate time. For instance for preparing a panel relating to the vacancies of 1987 the latest available records of service of the officers either upto December 1977 or the period ending March, 1978 as the case may be, should be taken into account and not the subsequent ones. However, if on the date of the meetings of the DPC, departmental proceedings are in progress and under the existing instructions sealed cover procedure is to be followed such procedure should be observed even if departmental proceedings were not in existence in the years to which the vacancy related. The officer's name should be kept in the sealed cover till the proceedings are finalised".
The Tribunal is of the view that while the principle enunciated in the first sentence of
the extract quoted above is unexceptionable, the example given in the subsequent
portion is not correct as will be discussed in the succeeding paragraph with reference
to the facts of this case.
6. The Tribunal has carefully considered the written submissions dated
12.05.1995 made by the respondents. It is an admitted fact that the panel year for
1994-95 commences on 1st April 1994 and ends on 31st March 1995. The panel 1994-
95 should, therefore, be ready on or before 01.04.1994 (Incidentally, the facts of the
case have disclosed that two vacancies arose on 1st April, 1995. As the panel for
1995-96 was not ready before this date, the vacancies have not been filled upon
01.01.1995 and it is nobody's case that vacancies cannot be filled up as and when they
arise.) It is also as admitted fact that the ACP for the financial year 1993-94 does not
become due by 01.04.1994 and it become due only after 3 or 4 months taking into
account the time allowed for several stages like self-appraisal, reporting, reviewing
and recording by the cadre controlling authority. Thus, ipso facto, the ACRs or 1993-
94 cannot come up for consideration by the DPC in drawing up the panel for 1994-95.
Applying the main principle enunciated in para 6.4.3 extracted above, namely, "the
scrutiny of the record of service of the officers should be limited to the records that
would have been available had the DPC met at the appropriate time" (emphasis
supplied), the Tribunal has no hesitation in holding that the proceedings of the DPC
dated 15.03.1995 for drawing up the panel for 1994-95 stand vitiated on account of
consideration of the ACRs for the financial year 1993-94.
7. The further argument of the respondents that the UPSC takes into account only
the clear and firm vacancies and that anticipated chain of vacancies which would arise
as a result of promotion to the higher grade are not taken into account, does not stand
judicial scrutiny. All the vacancies that can be anticipated with certainty by the cadre
47
controller authority during a financial year with reference to the records maintained by
them have necessarily to be taken into account while drawing up the panel for that
financial year. Retirements and promotions to the next higher grade ca very well be
anticipated and taken into account by the DPC in drawing up the panel for ensuing
financial year. It is not the case of the respondents that vacancies on account of
retirement in Senior CH's grade or consequential vacancies in that grade due to
promotions to the grade of Member (still next higher grade) could not be anticipated
an computed before the panel year commences. Retirement vacancies can be
computed with reference to the date of superannuation of the officers inferred from the
seniority list/gradation list maintained by the respondents and similarly the vacancies
that may arise on account of promotions to still higher grade of the officers in the next
higher grade. Whether 'X' or 'Y' in the higher grade gets promoted is not a material
factor and does not introduce any element of uncertainty about the vacancies in the
next higher grade. Unless vacancies arise due to reasons that cannot be anticipated
such as creation of new posts and new deputations not under consideration at the time
of competing vacancies the respondents are bound to project the vacancies that will be
arising consequent upon the retirement in the next higher grade and also vacancies in
the next higher grade which can be anticipated due to promotions from the next higher
grade to the still higher grade. Thus, the argument of the respondents that no action
could be taken to form the panel on or before 01.04.1994 in the case of vacancies
arising due to promotion in August 1994 September 94, October 94 and March 95 till
after the vacancies actually arose cannot be accepted. In other words, the panel for
financial year 1994-95 could have been drawn up on or before 01.04.1994 in respect
of the above mentioned four vacancies.
8. It has been clearly stated in the letter dated 17.10.1994 that according to the
Department of Personnel & Training's OM No. 22011/7/86/Estt(D) dated 19.07.1989
the crucial date for determining the eligibility of officers for being considered for
promotion by DPC has been laid down as 1st July of the year in the case where ACRs
are written on calendar yearwise, and 1st October of the year where ACRs are written
on financial yearwise. As discussed above, the panel for 1994-95 should have been
ready on or before 01.04.94. Accordingly the crucial date for determining the
eligibility of officers would be 1st October 1993. Thus, the reference point for
determining the zone of consideration would be confirmed only to those officers in the
seniority list of Senior Administrative Grade (Rs.5900-6700) as on 01.01.1993 who
were still in service as on 1st October 1993. The respondents have determined the
zone of consideration with reference to the seniority list as on 01.01.1995 and it has
not been demonstrated that the zone has not undergone any change due to adoption of
48
01.01.1995 seniority list instead of 01.01.1993 seniority list. If the composition of the
officers in the zone of consideration has undergone change due to adoption of the
incorrect seniority list this would further vitiate the proceedings of the DPC on
15.03.1995.
9. Predictability is a basic requirement of the principles of natural justice and
Rule of Law. If the DPC were to meet only after the vacancies arise and take into
account the ACRs ad seniority lists re-finalised issued after the commencement of the
panel, it introduces an element of uncertainty. This paves the way for arbitrary
exercise of power which militates against the principles of natural Justices and Rule of
Law.
10. Before parting with this case, the respondent No.4 i.e. the Secretary,
Department of Personnel & Training, Govt. of India, New Delhi would be well
advised to revise the instruction in para 6.4.3 of the guidelines extracted in para 5
above taken into account the fact that the panel for a financial year is expected to the
ready before the commencement of the financial year and ACRs for the previous
financial year will not become due and available to the DPCs if they are to meet at the
appropriate time i.e. before the commencement of the financial year. The guidelines
given in para 6.4.3 require notification only in respect of the instance given it the main
principle stated in the first sentence is unexceptionable as already observed.
11. In the result, the petition is allowed and the panel formed as a result of the
DPC held on 15.03.1995 for promotion to the Senior General Manager's Grade during
1994-95 is quashed.
12. The parties are left to bear their own costs.
***
49
1997(1) SLR 751
SUPREME COURT OF INDIA Civil Appeal Nos.16986-87 of 1996
D.D.16.12.1996
Union of India & Ors. – Appellants Versus N.R.Banerjee & Ors. - Respondents
A. Constitution of India, Article 16-Promotion-Promotion to the post of Senior General Manager in the Indian Ordnance Factories-Government should keep the panel ready in advance so that vacancies arising soon thereafter may be filled up from among approved candidates whose names appear in the panel-suitability of promotion to be considered in an objective and impartial manner.
B. Constitution of India, Article 16-Confidential Reports Object of writing
confidential Reports- Explained. Rule 2.1 relates to composition of the D.P.C for Group A and Group B Officers. Members included in DPCs should be officers who are at least one step above the posts in which promotion/confirmation is the made as indicated thereunder. This is consistent with the law laid by this Court in State Bank of India & Ors. Vs. Keshinath Kher & Ors. [1996(2) SLR 282 (SC) wherein it was held that the object of writing the confidential report is two-fold, i.e, to give an opportunity to the officer to remove deficiencies and to inculcate discipline. Secondly, it seeks to serve improvement of quality and excellence and efficiency of Public Service. The Officer should show objectivity, impartiality and fair assessment without any prejudices whatsoever with the highest sense of responsibility alone to inculcate devotion to duty, honesty and integrity to improve excellence of the individual officer. Lest the Officers get demoralized which would be deleterious to his efficacy and efficiency of public service, the confidential reports should be written by a superior officer of high rank. There should be another higher officer in rank above the officer who has written confidential report to review such report.
C. Constitution of India, Article 16-Appointment-Mere inclusion of name in the list does not confer any right in terms of appointment.
Considered from that perspective, the question arises: whether the view taken
by the tribunal is justified in law? It is true that filling up of the posts are for clear of anticipated vacancies arising in the year. It is settled law that mere inclusion of one’s name in the list does not confer any right in him/her to appointment. It is not incumbent that all posts any be filled up. But the authority must act reasonably, fairly and in public interest and omission thereof should not be arbitrary
Cases referred: 1. State Bank of India V. Keshinath Kher, 1996(2) SLR 282 (SC). 2. S.K. Rizvi V Union of India, 1993 Supp.(3) SCC 575. 3. Shankarsan dasli V. Union of India1991(2) SLR 779 (SC). 4. Babita Prasad V. State of Bihar, 1993 Supp.(3) SCC 268. 5. Union Territory of Chandigarh V. Dilbagh Singh, 1993(1) SLR 451 (SC). 6. State of Bihar V. Secretariat Assistant Successful Examinees Union 1986.
1993(5) SLR 598 (SC). 7. Nagar Mahapalika, Kanpur V. Vinod Kumar Srivastava, 1987(1) SLR 574
(SC).
50
ORDER Leave Granted.
2. These appeals by special leave arise from the orders of the Central
Administrative Tribunal, Jabalpur Bench, made on August 14, 1996 in OA
Nos.219/95 and 237/96. The controversy involved relates to promotion to the post
of Senior General Manager in the Indian Ordnance Factories under India Ordnance
Factories Services Rules. The question for consideration is as to when the vacancies
in the above posts would arise? The grade and scale of pay for the said post is Rs
3700-8000/-. For the year 1994-95, panel of successful candidates was required to be
prepared. According to the appellants, there were no clear vacancies on April 1994.
Four members in the above grade were to retire in that year. Proposal for filling up
the ensuing vacancies from Ordinance Factory Board was sent to the Ministry on
December 22, 1993. The Ministry had communicated to the Union Public Service
Commission its approval on February 8, 1994. A.C.Rs. of the eligible candidates were
approved on August 16,1994 and the incumbent members joined as members of the
Board on August 22, 1994, September 03, 1994, October 6,1994 and March1, 1994
and March1, 1995. Consequently the D.P.C. met on March 15, 1995 for selection of
officers to fill up the four vacancies.
3. On this factual matrix, it is contended for the appellants that the crucial date for
the D.P.C. meeting for selection should be April or May 1995 for selection of
candidates to fill up the vacancies of the year 1994-95. The A.C.Rs. Recorded of all
the candidates falling within the zone of consideration and approved by the
Government, as on March 31, 1994, are required to be looked into and merits
adjudged. The Tribunal, therefore, was not right in directing the Government to
ignore the A.C.Rs.for the year 1994 and consideration of the candidates eligible by
them upto March, 1993. The D.P.C. was to be constituted as on April 1, 1994.
Resultantly, the direction were given in paragraphs 25 and 28 for consequential action.
Shri Altaf Ahmed, learned Additional Solicitor General, contends that the view of the
Tribunal is not correct in law. As per the procedure, preparation of the panel of
candidates for consideration by the D.P.C. to fill up the clear vacancies as on April
1994 is necessary, A.C.Rs. are prepared on the basis of the performance during
financial year which would be October 1 of the year. In this case, the A.C.Rs of the
incumbents are written on the financial year basis. It was approved by the
Government in March 31, 1995. Therefore, the D.P.C could notr have got approved
A.C.Rs. before that date, namely, as held by the Tribunal on March 19,1993. The
direction, therefore, that the D.P.C. in its proceedings should take into consideration
A.C.Rs. of all the eligible candidates as on April,1993 is incorrect. Though, prima
51
facie, we are impressed with the arguments of Shri Altaf Aluned, on deeper probe and
on going through the procedure laid by the Ministry of Personnel and Training, we
find no force in the contention. Preparation of the action Plan for consideration by the
D.P.C. of the respective claims of the officers within the Zone and thereafter for
setting in motion the preparation of panel on yearwise basis, is elaborately mentioned.
In case of their failure to do so, what further procedure is required to be followed is
also indicated in the rules. It thereby manifests the intention of the rule-maker that the
appellant-Government should estimate the anticipated vacancies, regular vacancies
and also vacancies arising thereafter due to various contingencies and it should also
get the A.C.Rs prepared and approved. It is also made clear that the D.P.C. should sit
on regular basis to consider the cases of the eligible candidates within the zone of
consideration. The object is clear that the Government should kept the panel ready in
advance so that the vacancies arising soon thereafter may be filled up from amongst
the approved candidates whose names appear in the panel. In that behalf, it is seen
that in the guidelines issued by the Government in Part 1 of Clause (49) dealing with
Functions and Composition of Departmental Promotion Committee etc., necessary
guidelines have been enumerated. It envisages that a post is filled up by promotion
where the Recruitment Rule so provide. In making promotions, it should be ensured
that suitability of the candidates for promotion is considered in an objective and
impartial manner. In other words, the consideration of the candidate is not clouded by
any other extraneous considerations like caste, creed, co lour, sect, religion or region.
In consideration of claims, merit alone should enter into objective and impartial
assessments. The object appears to be that the A.C.Rs. be written by competent
officer and approved by superior officer objectively and impartially without being
influenced by any extraneous and extraneous and irrelevant consideration, to augment
efficiency in public service and to improve competence. For the purpose of selection,
Department Promotion Committee should be formed in each
Ministry/Department/Office, whenever an occasion arises for
promotions/confirmations etc. The D.P.Cs. so constituted shall judge the suitability
of officers for:
(a) promotions to selection as well as non-selection posts:
(b) confirmation in their respective grades/posts;
(c) assessment of the work and conduct of probationers for the purpose of
determining their suitability for retention in service or their discharge
from it or extending their probation; and
(d) consideration of cases of Government servants for crossing the
Efficiency Bar.
52
4. Rule 2.1 relates to composition of the D.P.C. for Group A and Group B
Officers. Members included in DPCs should be officers who are at least one step
above the posts in which promotion/confirmation is be made as indicated thereunder.
This is consistent with the law laid by this Court in State Bank of India & Ors. Vs.
Keshinath Kher & Ors. [(1996) 8 SCC 762] : [1996(2) SLR 282 (SC) wherein it was
held that the object of writing the confidential report is two-fold, i.e, to give an
opportunity to the officer to remove deficiencies and to inculcate discipline.
Secondly, it seeks to serve improvement of quality and excellence and efficiency of
Public Service. The Officer should show objectivity, impartiality and fair assessment
without any prejudices whatsoever with the highest sense of responsibility alone to
inculcate devotion to duty, honesty and integrity to improve excellence of the
individual officer. Lest the Officers get demoralized which would be deleterious to
his efficacy and efficiency of public service, the confidential reports should be written
by a superior officer of high rank. There should be another higher officer in rank
above the officer who has written confidential report to review such report.
5. Part II of the guidelines relating to the frequency of meeting of the Para 3.1
indicates that the D.P.Cs. should be convened at regular annual intervals to draw
panels which could be utilized for making promotions against the vacancies occurring
during the course of a year. In other words, the life of the penal is one year. For this
purpose, it is essential for the concerned appointing authorities to initiate action to fill
up the existing as well as anticipated vacancies well in advance of the expiry of the
previous panel, by collecting relevant documents like A.C.Rs. Integrity certificates,
seniority list etc. for placing before the D.P.C.
6. D.P.Cs. should be convened every year, if necessary, on a fixed date, i.e., last
of April or May. In the middle of the Para, by way of amendment brought on May
13, 1995, it postulates that very often action for holding D.P.C meeting is initiated
after the vacancy has arisen. This results in undue delay in filling up of vacancies and
caused dissatisfaction among those who are eligible for promotion. It may be
indicated that regular meeting of D.P.C should be held every year for each category of
posts so that approved select panel is available in advance for making promotions
against vacancies arising every year. Under Para 3.2, the requirement of convening
annual meetings of the D.P.C should be dispensed with only after a certificate has
been issued by the appointing authority that there are no vacancies to be filled by
promotion or no officers are due for confirmation during the year in question. It
would, thus be seen that D.P.Cs. are required to sit every year, regularly on or before
1st April or 1st May of the year to fill up the vacancies likely to arise tin the year for
53
being filled up. The required material should be collected in advance and merit list
finalized by the appointing authorities and placed before the D.P.Cs. for consideration.
The requirement can be dispensed with only after a certificate is issued by the
appointing authority that there are no vacancies to be filled by promotion, or that no
officers are due for confirmation, during the year in question.
7. Part III deals with preparatory action plan for consideration for promotion.
Para 4.1 reads as under:
“ It is essential that the number of vacancies in respect of which a panel is to be prepared by a DPC should be estimated as accurately as possible. For this purpose, the vacancies to be taken into account should be the clear vacancies arising in a post/grade/service due to death, retirement, resignation, regular long term promotion and deputation or from creation of additional posts on a long term. As regards vacancies arising out of deputation, only those cases of deputation for periods exceeding one year should be taken into account, due note, however, being kept also of the number of the deputations likely to return to the cadre and who have to be provided for. Purely short term vacancies created as a result of offices proceeding on leave, or on deputation for a shorter period, training etc., should not be taken into account for the purpose of preparation of a panel. In cases where there has been delay in holding four a year or more, vacancies should be indicated year-wise separately.’’
8. Crucial date for determining eligibility has been dealt with thereunder. By an
amendment brought w.e.f. July 19, 1989, it is stated that relevant dates for determining
eligibility of the officers for promotion would be, where A.C.Rs. are written calendar
yearwise, 1st July of the year and where the A.C.Rs. are written financial yearwise, 1st
October of the year. The other details prescribed in Chapter IV are not material for the
purpose of this case. Part 6.4.1 deals with preparation of yearwise panels by D.P.C.
which reads as under:
“ Where for reasons beyond control, the DPC could not be held in year(s), even though the vacancies arose during that year (or years), the first DPC that meets thereafter should follow the following procedures: (i) Determine the actual number of regular vacancies that arose
in each of the previous year(s) immediately preceding and the actual number of regular vacancies proposed to be filled in the current year separately.
(j) Consider in respect of each of the years those officers only who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards.
(k) Prepare a ‘ Select list’ by placing the select list of the earlier year above the one for the next year and son on.’’
9. It would, thus, be seen that the authorities are required to anticipate in advance
the vacancies for promotion on regular basis including long term deputation posts and
54
additional posts created and then to take the action plan in finalizing the A.C.Rs.
preparation of the candidates within the zone of consideration, as are found eligible for
the relevant year/years.
10. D.P.Cs. in the present case was directed to consider the cases of all eligible
candidates within the zone of consideration so that there will not be any heart burning
among the eligible persons whose claims have been withheld for consideration for
promotion to the highest post. In S.K. Rizvi and Ors. Vs. Union of India and Ors.,
1993 Supp. (3) SCC 575] the mandatory duty of the preparation of the select list of
the officers for promotion to the All India Services has been indicated in para 35 of the
judgment at page 605 thus: “ We therefore, hold that preparation of the select list
every year is mandatory. It would subserve the object of the Act and the Rules and
afford an equal opportunity to the promotee officers to reach higher echelons of the
service. The dereliction of the statutory duty must satisfactorily be accounted for by
the State Government concerned and this Court takes serious note of wanton
infraction.’’
11. It would thus be seen that the claims of the candidates eligible have to be
considered for promotion objectively and dispassionately, with a sense of achieving
many –fold purpose (1) affording an opportunity to an incumbent to improve
excellence, honesty, integrity, devotion to public duty; (2) inculcating discipline in
service; (3) afford opportunity to every eligible officer within zone of consideration
for promotion to higher post or officer; and (4) ensuring that the committee regularly
meets and considers their claim objectively, impartially with high sense of
responsibility in accordance with the procedure and finalization of the list in advance
so as to fill up vacancies arising in the year from the approved panel without any
undue delay. They are the salutary principles, purpose and the policy behind the
above rules and the Government should follow them.
12. Considered from that perspective, the question arises: whether the view taken
by the Tribunal is justified in law? It is true that filling up of the posts are for clear or
anticipated vacancies arising in the year. It is settled law that mere inclusion of one’s
name in the list does not confer any right in him/her to appointment. It is not
incumbent that all posts may be filled up. But the authority must act reasonably,
fairly and in public interest and omission thereof should not be arbitrary. In
Shankarsan Dash V. Union of India [(1991) 2 SCR 567] : [1991(2) SLR 779 (SC)],
the Constitution Bench had held that inclusion of the name of a candidate in a merit
list does not confer any right to be selected unless the relevant recruitment rules so
55
indicate. The State is under no legal duty to fill up all or any of the vacancies even
though the State acts in arbitrary manner. In Babita Prasad and Ors. V. State of Bihar
and Ors. ., [(1993) Supp. (3) SCC 268] it was held that mere inclusion of one’s name
in the panel does not confer on him/her any indefeasible right to appointment. It was
further held that the purpose of making panel was to finalise the list of eligible
candidates for appointment. The preparation of the panel should be to the extent of
the notified or anticipated vacancies. Unduly wrong panel should not be operated. In
Union Territory of Chandigarh V. Dilbagh Singh and Ors., [(1993) 1 SCC 154]:
[1993(1) SLR 451 (SC)], it was held that the mere fact that a candidate’s name finds a
place in the select list as a selected candidate for appointment to a post, does not
confer on him/her an indefeasible right to be appointed in such post in the absence of
any specific rule entitling him to such appointment. In State of Bihar and Ors. V.
Secretariat Assistant Successful Examinees Union 1986 and Ors., [(1994) 1 SCC
126]:[1993(5) SLR 598 (SC)], it was held that a person who is selected and
empanelled does not on account of empanelment alone acquire any indefeasible right
to appointment. Empanelment is at the best, a condition of eligibility for the purposes
of appointment and that by itself does not amount to selection or creation of a vested
right to appointment unless relevant rules state to the contrary. However, in the light
of the above principles and in the light of the clear rules extracted hereinbefore, it is
seen that the exercise of preparation of the panel is undertaken well in advance to fill
up the clear vacancies or anticipated vacancies. The preparation and finalisation of
the yearly panel, unless duly certified by the appointing authority that no vacancy
would arise or no suitable candidate was available, is a mandatory requirement. If the
annual panel could not be prepared for any justifiable reason, yearwise panel of all the
eligible candidates within the zone of consideration for filling up the vacancies each
year should be prepared appointment made in accordance therewith. In Nagar
Mahapalika, Kanpur V. Vinod Kumar Srivastava, [AIR1987 SC 847]: [1987(1) SLR
574 (SC)], this Court had pointed out with respect to the prescription of the limitation
of one year of the waiting list thus:
“ The reason underlying the limitation of the period of list for one year is obviously to ensure that other qualified persons are not deprived of their chances of applying for the post in the succeeding year and being selected for appointment’.
13. It is true that the material furnished before us would indicate that action was
taken on December 22, 1993 by the Ordnance Factory Board and circulated for action
to be taken by the Government and thereafter the Union Public Service Commission
was consulted. Action taken on this material should have been taken much earlier to
the date on which it was taken since they knew that four members were due to retire in
56
August, September. October 1994 and March 1995. These were anticipated vacancies
likely to arise on permanent basis and promotion to them was to be made on regular
basis. April 1994 and the confidential reports should have been approved before 31st
March 1993 and all eligible candidates within the zone of consideration as on the date
of D.P.C. were entitled to be considered. The direction given by the Tribunal referred
to above is clearly in accordance with the procedure indicated hereinafter. Therefore,
we do not find that the orders are vitiated by any error of law warranting interference.
14. The appeals are accordingly dismissed. No costs. Since the Tribunal has given
time to constitute the D.P.C and finalize the matter within 45 days time is extended for
45 days from today. It is needless to mention that all those found eligible are required
to be appointed.
APPEALS DISMISSED.
***
57
PRINCIPAL BENCH, NEW DELHI OA NO.2538/1994
D.D. 8.6.1995
Hon'ble Mr. J.P.Sharma, Member (J) Hon'ble Mr. B.K. Singh, Member (A)
Mrs. Anil Katiyar - Applicant Vs. UOI & Others - Respondents
The Tribunal is neither competent to sit in judgement over the recommendations of the DPC nor it is competent to sit in judgement over the acceptance or rejections of the recommendations by the ACC.
O R D E R
Per B.K. Singh, Member (A)
This application (OA No. 2536 of 1994) is directed against the proposed
promotion of respondent No. 4 Shri. B.K. Prasad to the post of Deputy Govt.
Advocate in the pay scale of Rs.3700-5000 from the post of Assistant Government
Advocate, based on the recommendation of the DPC presided over by a member of the
UPSC dated 14.11.1994. The admitted facts are that the applicant and respondent
No.4 are both Assistant Advocates working in the Ministry of Law, Justice and
Company Affairs, Department of Legal Affairs, Govt. of India in the pay scale of
Rs.3000-4500. It is also admitted that respondent No.4 is senior to the applicant in the
gradation list.
At a result of a post of Deputy Government Advocate falling vacant,
formalities for filling up that post were finalised and both the applicant and respondent
No.4 who fall within the zone of consideration, were by the Department along with
their bio-data for promotion to the vacant post of Deputy Govt. Advocate.
The main ground for challenging the recommendation is that the post of
Dy. Govt. Advocate is a selection post where merit takes precedence over seniority
and since the applicant has earned two out standing remarks in 1990-91 and 1991-92
and 'Very Good' in 1992-93 and respondent No.4 has been graded only as 'Very
Good', as such the applicant should have been recommended on the basis of her 'out
standing' record of service and performance. In this connection, the applicant has also
cited office memorandum filed as Annexure 'C', which reads under:
"In making promotions, it should be ensured that suitability of the candidates for that promotion is considered in an objective and impartial manner..........."
58
The applicant's grievance is that the recommendations of the UPSC do not
indicate that the members of the D.P.C. followed the guidelines issued by the
Department of personal and Training from time to time and as such aggrieved by this
recommendation, the applicant filed this OA on 9.10.1994 praying for the following
reliefs:
"(a) quash the order, if any, of the selection of the respondent No. 4, for the post of Dy. Govt. Advocate, taken o the basis of the meeting of the Departmental Promotion Committee on 14.11.1994 and headed by the members of UPSC and order for review of the decision by the said Departmental Promotion Committees.
(b) "to restrain the respondent No. 1 to 4 from appointing the respondent No.4, as Dy. Govt. Advocate in the Central Section of the Supreme Court of India for looking after the litigation of the Govt. of India..................."
On notice, the respondents filed the reply and contested the application and
grant of relief prayed for.
We have heard Mr. R.K. Anand, Senior Advocate with Mr. M.P. Shorawala,
Advocate for the applicant ad Mr. M. Chandershekharan, Addl. Solicitor general and
Mr. Naresh Kaushik, Advocate for the official respondents and the private respondent,
respectively and perused the record of the case and the ACRs of the applicant and
respondent No.4.
The learned counsel for the applicant argued that though respondent No.4 is
senior but the applicant is more meritorious as is reflected from the ACRs and merit
has to be judged in an objective and impartial manner and the DPC did not make
proper assessment of the merit of the two candidates. The learned Sr. Advocate said
that since ACRs of both the candidates Court should satisfy itself about the
contentions made by the applicant in OA and reiterated in rejoinder regarding the
superiority of the remarks earned by her. The seniority cannot be the basis of selection
in a case like this. He also alleged legal malafides on the part of the DPC in
recommending respondent No.4. He vehemently and vigorously argued that the
service record of the applicant is better ad superior to that of respondent No.4 and if
this is not prayed on the basis of the ACRs, he will not have a case at all.
The learned Addl. Solicitor General argued that both the candidates were
assessed as 'Very Good' by the D.P.C. and in a situation like this where all things are
equal, seniority has to be given due weightage ad this is exactly what was done in this
59
case. The recommendation of the DPC, according to him, is based on objective and
impartial assessment of both the candidates in the zone of consideration and that
Tribunal cannot interferes unless the recommendation is found to be arbitrary and
discriminatory in nature. He further argued that the DPC has followed the guidelines
issued by the DO PI and, therefore, the recommendations cannot be saulted with. We
have perused the records produced by the department in a sealed cover and it is true
that Shri B.K. Prashad has been graded as 'Very Good' by the reporting/reviewing
authority but no remarks have been recorded by the accepting authority during the
three years period. Thus, in his case, his ACR for three years clearly indicates that he
has been graded by both the officers, that is, reporting and the reviewing officer as
'Very Good'. The resume submitted by the applicant about his work has been accepted
by the Reporting Officer and various columns also indicate that his overall
performance in the various fields of activities ad his relationship with superiors and
subordinates have been adjudged as 'Very Good'. As regards the applicant, remarks
for 1991 is certainly 'Outstanding' and this has been accepted by the reviewing officer
but unfortunately there is no remarks from the accepting authority. The remarks in
case of the applicant Smt. Katyar are 'out standing' grading by the reporting and the
reviewing officer only. There is no (not legible) Accepting Authority either on
the grading or the attributes of the applicant. The remarks for the year 1991-92 do not
seem to have been recorded separately although the resume, which she has submitted
is from 01.04.1991 to 31.03.1992 but the reporting officer, who has recorded the
remarks on 18.08.1993 has graded her as outstanding. The remarks do not flow from
the various parameters filled up by the reporting officer. The reviewing officer has
recorded his remarks on 09.09.1994 and has endorsed the reports of the reporting
officer but in this case also there is no remark of the accepting authority. The grading
recorded by the Reporting Officer on 15.06.1990 is only 'Very Good'. These, are
presumably are the remarks for 1992-93. The reviewing officer also has recorded only
'Very Good' remarks on the accepting authority has not recorded any remarks. Thus,
taking the overall picture, Ms. Katyar has got outstanding gradings but one
'outstanding' does not flow from various parameters given and the reports entered
therein. This must be the reason why both the officers on overall assessment have
been graded as 'Very Good'. The remarks of the Minister, who must be the accepting
authority, the DPC seems to have gone through the parameters and the remarks given
therein and categorised both as 'Very Good' although in case of Mrs. Katyar, the
grading given by the reporting/reviewing officer for two years certainly are
outstanding. The reporting and reviewing officers are the same in both cases. The
remarks in both the cases have been recorded by the Special Secretary and the Law
Secretary is the reviewing officer and we presume that one of them must have been a
60
member of the committee presided over by a member of the UPSC. This Tribunal is
not expected to play the role of an appellate authority or an umpire in the acts and
proceedings of the DPC. The recommendations of the expert bodies cannot be
questioned and judicially reviewed. It has been held in case of State of Bihar & others
Vs. Dr. Asis Kumar Mukherjee and others ((1975) 3 Supreme Court cases 602):
"From Olympic team selection to orthopedic expertise the judicial robes are invited to exercise umpire's jurisdiction under our system. Even where judges angles should they not fear to tread where perhaps others may rush in?"
In case if B.S.Minhas Vs. Indian Statistical Institute (1983) 4 SCC 382, the Hon'ble
Supreme Court has observed as follows:
" It is not for the Court to determine who is the Superior of the two candidates ad who should be selected. It is for the authorities concerned to select from amongst the available candidates.
In AIR 1987 SC 1889 SBI Vs. Mohd. Moinuddin, the Hon'ble Supreme Court has
clearly laid down that selection has to be made by a regularly constituted DPC and no
officer can claim promotion or selection to the higher grade as a matter right. He has a
right to be considered but ha no right to be promoted and the Court is not competent to
sit is an appellate authority ad appreciate the abilities and attributes of the eligible
candidates". The same view has been reiterated in AIR 1988 SC 1969 UPSC Vs.
Hiranaya Lal, wherein it has been observed that the authority to make
selection has been vested in the DPC and the Tribunal or a court cannot usurp the role
for itself. In one of the latest rulings, the Hon'ble Supreme Court in JT 1995(2) SC
654 Major General I.P.S Dewan Vs. Union of India and others categorically barred the
jurisdiction of the Courts to sit as an appellate authority over the acts ad proceedings
of the DPC.
In view of the law laid down by the Hon'ble Supreme Court, we cannot go into
the recommendations made by the DPC and accepted by the Government. The
learned Additional Solicitor General categorically stated at the Bar that ACC has
already accepted the recommendations of the DPC and has appointed Shri. B.K.
Prasad as Deputy Govt. Advocate and thus after the approval of the ACC the petition
itself has become infructuous. This Tribunal is neither competent to sit in judgment
over the recommendations of the DPC nor it is competent to sit in judgment over the
acceptance or rejection of the recommendations by the ACC as has been held in the
case of Dr.A.K. Mukherjee Vs. Union of India (supra). In the light of the aforesaid
observations, the application fails and is dismissed leaving the parties to bear their
own costs.
61
The order of status-quo granted by the Tribunal on 03.01.1995 and continued
till the hearing of this application is vacated. The original ACRs called form the
Department of Legal Affairs, Ministry of Law, Justice and Company Affairs are
returned in sealed cover to the learned counsel for the respondents Shri Madhav
Panikar.
***
62
SUPREME COURT OF INDIA CIVIL APPEAL No.4432 of 1996
D.D. 8.11.1996
Hon'ble Mr. Justie S.C.Agrawal Hon'ble Mr. Justice Nanavati
Mrs. Anil Kaliyar – Appellant Vs. Union of India & Ors. – Respondents
J U D G M E N T
S.C.AGRAWAl, J.:
This appeal relates to appointment on the post of Deputy Government
Advocate in the Central Agency Section in the Ministry of Law of the Government of
India. The appellant as well as respondent No.4 are both employed in the Central
Agency Section. The appellant joined as Asst. Government Advocate on April 9,
1990, while respondent No.4 joined the said post on October 5, 1989. Respondent No.
4 was thus senior to the appellant. The post of Deputy Government Advocate is a
selection post on which appointment is made from amongst Asst. Government
Advocates. A Departmental Promotion Committee (DPC) headed by a member of the
Union Public Service Commission was constituted for making the selection. The
appellant as well as respondent No.4 were graded as "Very Good" by the DPC and
since respondent No.4 was Senior to the appellant he was selected and on the basis of
the said selection he was appointed as Deputy Government Advocate. The appellant
moved the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter
referred to as 'the Tribunal') by filing OA No. 2536 of 1994 which has been dismissed
by the impugned judgment dated June 8, 1995.
Before the Tribunal the main contention urged by the appellant was that the
selection was made by the DPC on the basis of the Annual Confidential Reports
(ACRs) of the appellant and respondent No.4 for the years 1990-91, 1991-92 and
1992-93 and had in the ACRs for the years 1990-91 and 1991-92 the applicant was
graded as "outstanding" by the Reporting Officer as well as the Reviewing Officer and
that in the ACR for the 1992-93 she was graded as "Very Good" by the Reporting
Officer as well as the Reviewing Officer and that respondent No.4 on the other hand,
was graded as "Very good" by the Reporting Officer as well as the Reviewing Officer
in all the three ACRs. The submission was that since the appellant had been graded as
"outstanding" in two out of three ACRs by the Reporting Officer as well as the
Reviewing Officer, grading the appellant as "Very good" by the DPC was not
63
justified. The Tribunal has held that it was not expected to play the role of an
appellant authority or an empire in the acts and proceedings of the DPC and that it
could not go into the recommendation made by the DPC which had been accepted by
the Government. The Tribunal has at the same time, looked in to the ACRs of the
applicant and has observed that out of two "out standing" gradings given to the
appellant out "out standing" grading does not flow from various parameters given an
the reports entered therein and that must be the reason why the appellant had been
grained as "Very good".
Shri. Gopal Subramanium, the learned senior counsel appearing for the
appellant, has submitted that the Tribunal was in error in observing that one
"outstanding" grading does not flow from various parameters given and the reports
entered and in doing so the Tribunal has assumed the role of an appellate authority
over the Reporting Officer and the Reviewing Officer, a course which according to the
Tribunal itself, could not be adopted be it. The submission is that the grading has to
be made by it the Reporting Officer and the Reviewing Officer and since both have
agreed in granting the appellant as "outstanding" in the ACRs for the years 1990-91
and 1991-92, it was not open to the Tribunal to say that one of the "outstanding"
gradings does not flow from various parameters given and the repairs entered therein.
As regards the grading made by the DPC, the submission of Shri Subramanium is that
there is no reason why the appellant should have been granted "Very Good" when she
had received "outstanding" remarks from the Reporting Officer as well as the
Reviewing Officer in the ACRs of two out of three years.
Having regard to the limited scope of judicial review of the merits of a
selection made for appointment to a service or a Civil Post. The Tribunal has rightly
proceeded on the basis that it is not expected to play the role of an appellate authority
or an umpire in the acts an proceedings of the DPR a that it could not sit in judgment
over the selection made by the DPC unless the selection is assailed as being vitiated by
mala fides or on the ground of it being arbitrary. It is not the case of the appellant that
the selection by the DPC was vitiated by mala fides.
The question is whether the action of the DPC in grading the appellant as
"Very Good" can be held to be arbitrary. Shri. G.P. Sanghi, the learned senior counsel
appearing for the Union Public Service Commission for giving overall gradings,
including that of "outstanding", to an officer. Having regard to the said confidential
procedure which is followed by the Union Public Service Commission, we are unable
to hold that the decision of the DPC in grading the appellant as "Very good" instead
64
of "outstanding" can be said to be arbitrary. No ground is, therefore, made out for
interference with the selection of respondent No.4 by the DPC or the basis of which he
has been appointed as Deputy Government Advocate. But, at the same time it must be
held that the Tribunal was in error in going into the question whether the appellant had
been rightly graded a "outstanding" in the ACR's for the years 1990-91 and 1991-92.
The observations of the Tribunal that out of the two "outstanding" in the ACRs for the
years 1990-91 and 1991-92. The observations of the Tribunal that out of the two
"outstanding" grading does not flow from various parameters given ad the reports
entered therein cannot, therefore, be upheld and are accordingly set aide.
The appeal is disposed of accordingly with no order as to costs.
***
65
CENTRAL ADMINISTRATIVE TRIBUNAL, MUMBAI OA No.975/96 dt. 19.3.1998
Hon'ble Shri Justice R.G.Vaidyanatha, Vice Chairman Hon'ble Shri P.P.Srivastava, Member (A)
Mr.B.Sarangi Vs. UOI & Others
Even though Sambhus case has been upheld by the Supreme Court, in the order it is clearly mentioned that the decision given by the full bench appears to be fair and just in the peculiar facts and circumstance of the case.
O R D E R
[Per : R G Vaidyanatha, Vice Chairman]
1. This is an application filed under section 19 of the Administrative Tribunals
Act 1985. Respondents have filed reply. We have heard Mr. M.S. Ramamurthy with
Mr. Ramesh Ramamurthy. Learned counsel for the applicant and Mr.R.K. Shetty,
learned counsel for Respondent Nos. 1and 3 and Shri. R. Srinivasan, learned counsel
for Respondent No.2.
2. The applicant is working as Superintending Engineer in the Military
Engineering Service (MES). His grievance is about the 1986 DPC proceedings under
which he was placed on panel of Executive Engineers for the year 1982 instead of
1981. There was dispute between direct recruits and promotees in the MES. The
matter was (initially decided by the Supreme Court in the case of A. JANARDHANA
Vs. UNION OF INDIA, decided by the Supreme Court on 26.04.1983 in Civil Appeal
No. 360 of 1980, where the Supreme Court gave certain directions as to how seniority
list should be prepared. Then on the basis of the directions of the Supreme Court the
DPC, chaired/presided over by a member of the UPSC considered the promotion to
the cadre of Executive Engineer for different years like 1919,1980,1981,1982 and
1983.The DPC meeting was held in 1986 wherein the applicant was placed on the
panel against the vacancies of Executive Engineer for the year 1982. According to the
applicant if the DPC had considered the question of seniority on correct ad legal basis
then the applicant should have been placed in the 1981 panel itself. It is alleged that in
the revised seniority list of 1987 Sr. 13 to 68 of 1981 panel are all juniors to the
applicant and if the applicant had been correctly placed in the 1981 panel he would
have been at Sr. No. 12 itself. If the applicant is kept in 1981 panel in the right place
then, now he would be entitled to be considered for the promotion to the post of
Additional Chief Engineer. The reason for not giving proper place in the seniority list
to the applicant is a wrong interpretation of the grading given in the ACRs of the
candidates. It is stated that since the applicant was already working on adhoc basis. In
66
the higher post of Executive Engineer the grading in the ACRs cannot be compared
with the grading of his ACRs of the Assistant Executive Engineer which is a lower
cadre on the principles upheld by the full Bench in Mr. S.S. SAMBHUS Vs. THE
UNION OF INDIA ORS. (1991-93 A.I. FULL BENCH JUDGMENTS 178) and
confirmed by the Supreme Court that whenever an officer is working on ad-hoc basis
in a higher grade then his grading in ACR should be upgraded by one step for the
purpose of considering his case of promotion. Since the applicant's case has been
considered along with his juniors without upgrading his grading in the ACRs his
seniority has been placed in 1982 panel instead of 1981 panel. Therefore, applicant
has approached this Tribunal by way of this application that the proceedings of 1986
DPC under which the applicant was placed in 1982 panel should be declared at
unjustified, and volatile of Articles 14 and 16 of the Constitution of India and for a
direction to the Respondents to consider the case of the applicant for vacancies of
1981 by upgrading his ACRs as laid down by the Full Bench of this Tribunal in
SHAMBUS case and confirmed by the Supreme Court and for other consequential
benefits.
3. Though the Respondents Nos. 1 and 3 on the one hand and Respondent No.2
on the other have filed separate written statements, their defence is common their
common. Their main plea is that the application is bared by limitation, delay and
laches. It is stated that the question of seniority cannot after a lapse of ten to twelve
years and therefore the application is not maintainable after the delay of so many
years: that the principle enunciated by the full bench in SHAMBUS case ad upheld by
the Supreme Court depended on the peculiar facts and circumstances of that case and
cannot be applied as a uniform rule in all cases. Even otherwise that decision cannot
be applied to cases which had been closed long prior to the judgment in other words
the previous promotions had been prior to the judgment in SHAMBUS case cannot be
responded on the basis of a subsequent judgment. It is also their case that the
application is bad for non-joinder of necessary parties, since the persons who are
above the applicant in the seniority list and who are going to be affected if the
applicant's case is accepted, are not made party respondents. It is further their case
that identical matter has already been concluded by the Principal Bench of the
Tribunal by decision dated 29.01.1993 in transferred application No. 1037 of 1985. It
is therefore, prayed that the application be dismissed.
4. The learned counsel for the applicant Mr. Ramamurthy, contended that the
proceedings of 1986 DPC meeting are vitiated and the seniority list prepared is liable
to be quashed since applicant's ACRs, who was working in the higher post, have been
67
considered at par with the officers working the lower cadre. He argued that the
applicants grading in ACRs should be upgraded by one step on the principal upheld in
SAMBHUS case and upheld by the Supreme Court and DPC should be given
direction to review the case of the applicant by upgrading the ACRs and for giving
promotion for the 1981 vacancies and restore his rightful place in the seniority list.
But the learned counsel for the respondents while refusing this contention on merits
pleaded the grounds of limitation, delay and laches and non-joinder of parties and
contended that the application is not maintainable.
5. In the light of the arguments addressed before us the points that fall for
determination are:
i) Whether the application is bad, not maintainable on the ground of limitation delay and laches?
ii) Whether the application is bad for non-joinder of necessary parties?
iii) Whether on merits the applicant's grading in ACRs should be upgraded as contended?
iv) What order? POINT NO.(1) As for as the question of limitation is concerned Section 21 of the
Administrative Tribunals Act, 1985 provides a period of limitation of one year. In the
present case the DPC proceedings were held in 1988 and as a result of the same
seniority list was published in 1997. The applicant is shown, according to him, far
below his juniors. Therefore, the applicant got a cause of action to question seniority
list after 1988 DPC meeting or atleast when the seniority list after 1988 DPC meeting
or atleast when seniority list was published in 1987. He should have immediately
approached either this Tribunal or any competent court to challenge the correctness of
the seniority list. Though the cause of action arose either in 1988 or 1987, the present
OA is fitted as late as in 1996. Here making some representations or repeated
representations will not save limitation as held by the Apex Court in S.S. RATHORE
Vs. STATE of MADYA PRADESH, (AIR 1990 SC 10). As soon as the seniority list
came to be published the applicant got cause of action. He cannot sleep over his rights
for ten years and then come to the court to question the correctness or legality of the
seniority list.
Apart from the question of limitation, we have to consider this question from a
different angle viz., from the point of view of delay and laches. Even if an application
is within limitation or no period of limitation is attracted still the claim can be rejected
on the principle of delay and laches. We must bear in mind that the question of
68
seniority cannot be kept on hanging for years together. There must be certainty to
everything particularly in service maters. How can the applicant sleep over the rights
over seniority list for 10 years and then move this Tribunal, which becomes a state
claim and cannot be entertained by any court or Tribunal. If the application is granted
then the applicant will go about 60 places in the seniority and those 60 people are
affected after a lapse of 8 to 10 years. In service jurisprudence apart from the question
of limitation, delay and laches assume importance while granting relief to an
applicant. Even if a party is entitled to relief on merits, the court or Tribunal may not
grant if he comes to court after a long lapse of time. We will presently refer to some
of the cases on this point appearing for the respondents.
7. In OA No. 289/97, an identical matter filed by officer of MES like the
applicant challenged the very same 1988 DPC proceedings and the question of
seniority. We had rejected that application by order dated 12.12.1987 only on the
ground of delay and laches.
In the case of B.S.BAJWA & ANOR Vs. STATE OF PUNJAB (JT.1998(1)
SC 57) the Supreme Court observed that the applicant knew from the beginning their
position in the seniority but did not come to court early. Then it is observed in para 6
as follows:
"............ It is well settled that in service matters the question of seniority should not be re-opened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable".
In 1997(6) SCC 255 (STATE OF HARYANA & ORS. Vs. AJAY WALIA), it
was found that the writ petition had been filed 13 years after cause of action arose and
it was held that due to delay and laches the writ petition is not maintainable, they have
even pointed out that representations repeatedly made do not furnish fresh cause of
action to file writ petition. In fact in that cause the High Court granted some relief, but
the Supreme Court reversed the same holding that in view of long delay and laches the
writ petition was not maintainable.
STATE OF KARNATAKA & ORS Vs. S.M. KOIRAYYA AND OTHERS
[(1996) 6 SCC 26] it is a case where some applicants came to the Tribunal on the
ground of similar relief has been granted to some other officials in a previous case.
The Supreme Court noticed that there was delay of few years and that mere fact that
the applicants filed the belated application immediately after coming to know that in
similar claims relief had been granted to some other officials in 1989 was not a ground
69
for the applicants to come late and there is no sufficient ground for condonation of
delay.
1991 SUPP (2) SCC 183 (GOVERNMENT OF ANDHRA PRADESH & ORS
Vs. M.A KAREEM & ORS) – it was a case of agitating service dispute after 13 years.
The Supreme Court has observed that the Courts and Tribunals should be slow in
disturbing the settled affairs in service after such a long period. Further, the Supreme
Court held that the officials who are likely to be affected by the order were not made
parties. It is further pointed out that delay of 8 years in initiating legal remedy is fatal
and on this ground alone writ petitions are liable to be dismissed.
In the case of GC GUOTA & ORS Vs. M.K. PANDEY AND ORS. [AIR 1988
SC 288], it was found that the writ petition had been filed four years after the seniority
question was settled. The Supreme Court in para 29 observed as under:
" 29. In the instant case however, I am not inclined to give any relief to the respondents (petitioners in the writ petition) by directing re-determination of the seniority of the respondents as well as the appellants on the ground of unusual laches and delay".
AIR 1990 PUNJAB AND HARYANA 117 [PUNJAB STATE
ELECTRICITY BOARD, PATIALA AND ANOTHER Vs. ASHOK KUMAR
SEHGAL & ORS], the full Bench of Punjab and Haryana expressed similar view. His
Lordship Justice M.N. Punchi as he then was (Presently His Lordship is the chief
Justice of the Supreme Court has observed that has disentitled the party to get any
relief. It is observed if the promotions are scheduled retrospectively after a lapse of so
many years it would lead to chaos and would put heavy financial burden on the
employer.
8. It is therefore, seen that in service matters, particularly where question of
seniority is concerned, we cannot grant relief in State claims after a long lapse of time.
Here the seniority was published in 1987 and the present application is filed in 1998.
Now at this distance of time we cannot direct that the seniority list should be changed
and DPC should review the case of the applicant and then place him above so many
officers as per 1981 seniority. Having regard to the facts and circumstances of the
case we are constrained to hold that the present application is highly belated and
therefore bared by limitation besides being bad on the grounds of laches and delay.
There is absolutely no justification in this belated application and on this short ground
the application is liable to be dismissed summarily. Point No. (1) is answered
accordingly.
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9. POINT NO.(ii):
As already stated the applicant is claiming the seniority over many persons and
he wants to be placed at SC No. 12 and jump in the list by about 50-60 places. All
these 50-60 persons who are likely to be prejudicially affected by this order are not
made parties to this OA.
In the case of full Bench of the Punjab and Haryana mentioned above on the
ground of laches and delay it has been observed that the concerned junior who is likely
to be affected is not made as a party. We have already referred to the decision of the
Supreme Court. In 1991 SUPP 2 SCC 183 above where it has been observed by the
apex court that the persons likely to be prejudicially affected by the order are not made
parties and this is one of the grounds for rejecting the petition.
In 1996(3) SCC 587 [J. JOSE DHANAPAUL Vs. S. THOMAS AND
OTHERS] it was observed that the tribunal could not have interfered in a matter when
the person to be affected was not made as a party.
It is one of the fundamental principles in law that a person who is likely to be
affected by the order should be made a party to the proceeding. The applicant wants
the seniority list to be changed and he should be placed at Sr. No. 12 by passing many
seniors shown in the seniority list. All those persons who are going to be affected by
any order that may be passed in allowing the application should have been made
parties to the OA. Their rights cannot be denied by allowing the OA without hearing
them. Hence in our view non-impleading of persons to be prejudicially affected if the
allowed is fatal defect in the OA. Hence point No. (ii) is also in the affirmation.
10. POINT NO. (iii)
In view of our findings on points (i) & (ii), the application is liable to be
rejected without going into the question of merits. However, since the matter has been
argued before us we will give our brief reasons on Point No. (iii).
The only argument addressed on behalf of the applicant about the merits is that
in view of the decision of the Full Bench in SAMBHUS case (Supra) grading of the
applicant's ACRs for the relevant years should be upgraded since he was working in
the promotion post of Executive Engineer on ad-hoc basis. The learned counsel for
the respondent contended that the very ad-hoc promotion of the applicant to the post
71
of Executive Engineer is found to be illegal and such ad-hoc promotions have been
quashed by the Supreme Court in JANARDHANA's case and therefore, the question
of the applicant getting benefit of the ad-hoc promotion for the purpose of upgrading
the ACRs in view of the decision of the Full Bench in SAMBHUS case does not arise.
In our view the argument is not without force.
The further argument on behalf of the respondents is retrospectively effect and
promotions made previously cannot be reopened on the basis of a subsequent
judgment. This argument is also not without force.
11. We have already soon as for as the applicant is concerned the DPC
proceedings were completed in 1986 and seniority list was published n 1987. The
applicant accepted the seniority list without any murmur for years together. He never
approached any court of law or the Tribunal challenging the same on any ground. The
judgment of SAMBHUS case was delivered on 29.10.91 by the Full Bench. Can it be
that in view of the Full Bench judgment in 1991 all promotions made in all
departments all over India should be re-opened and the previous promotions should be
ser aside and fresh promotions should be given effect retrospectively etc. In our view
such is not intended by law. Even if the decision of SAMBHUS case is applicable,
still it can not be applied retrospectively and the assessment made in 1986 and the
seniority list of 1986 cannot be re-opened on the basis of a judgment given by the Full
Bench in 1991 and that too in the present OA filed in 1996. If this argument is
accepted then it would create chaos and anarchy in service matters all over India and
in all departments of Central Government. The question of seniority cannot be kept on
hanging and cannot be changed as and when some judgment is delivered by the
Tribunals or courts. It may be in future, we can follow SAMBHUS case and give list
which have become final cannot be re-opened in view of a subsequent decision given
by a court of Tribunal. In fact we have come across many decisions of the Supreme
Court where they have held that even if the promotions or appointments are illegal
they are not quashing the same in view of lapse of time. No authority is necessary for
such a preposition of law. Therefore, in our view, even if we accept the applicant's
case with the principles laid down in SAMBHUS case, the promotions made in 1986
and the seniority list prepared in 1987 which have become final cannot now be re-
opened in view of the judgment in SAMBHUS case which was given in 1991.
12. Then there is serious dispute between the parties about the very application of
the judgment of SAMBHUS case to the fact of the present case. The learned counsel
for the respondents invited our attention ad submitted that this very question arose for
72
consideration before the principal Bench i a identical matter in a OA filed by the same
MES Officers whose case was determined along with the applicant in the DPC held in
1986 and the seniority list published in 1987 (A.K. BAJAJ Vs. UNION OF INDIA &
ORS., decided on 29.01.1993 in Tr A. No. 1037/1985) raising the same question
about the same 1988 proceedings pertaining to MES. The same argument that
SAMBHUS case is applicable was pressed into service before the Principal Bench and
the Division Bench of the Principal Bench rejected that argument in their judgment,
the relevant portion for our present purpose is at para 30 which reads as follows:-
"30. Some of the applicants have argued that relative assessment was not on the basis of equality. While some have been adjudged on their performance in the post of Assistant Executive Engineer, some others like the applicants have been also adjusted in this higher post of Executive Engineer. In this context, they have relied upon the judgment of the Full Bench of this Tribunal dated 29.10.1991 in OA 306/1990 and connected matters - S.S. Sambus and others Vs. Union of India and others. In our opinion, the aforesaid decision of the Full Bench and other decisions cited before us are distinguishable. In our opinion, where promotions are to be made by selection method, as in the instant case, it is entirely left to the DPC to make its own classification of the officer being considered by them for promotion, irrespective of the grading that may be shown in the confidential reports. It is for the DPC to consider the confidential reports as a whole in this regard.
For good reasons the Principal Bench has observed that SAMBHUS case is not
applicable in the peculiar facts and circumstances of that case, which applies to the
facts of the present case also since the applicants also belong to MES and they are also
challenging the same DPC proceedings and the same seniority list. Though we have
heard the learned counsel of the applicant at length we are not persuaded to take a
different view. Even though SAMBHUS case has been upheld by the Supreme Court,
in the order it is clearly mentioned that the decision given by the Full Bench appears to
be fair and just in the peculiar facts and circumstances of the case. Hence agreeing
with the observations of the Principal Bench we dismiss this application.
***
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PRINCIPAL BENCH, NEW DELHI OA NO.1936/2001 DT. 12.11.2001
Hon'ble Shri V.K.Majotra, Member (A) Hon'ble Shri Kulip Singh, Member (J)
Mr. R.K.Anand Vs. UOI & Others
In view of the ratio of the judgement of the Supreme Court in the case of UP Jal Nigam when in view of the criteria of promotion to the SAG downgradation from 'Very good" has an adverse effect on the career of the applicant it was imperative that such ACRs should have been communicated to him.
O R D E R
Hon'ble Shri. V.K.Majotra, Member (A):
The grievance of the applicant is that several juniors to the applicant have been
promoted to the Senior Administrative Grade (SAG) of the Indian Defence Accounts
Service (IDAS) superseding the applicant vide panel for promotion recommended by
the Departmental Promotion Committee (DPC) meeting held on 30.11.2000. Super
session of the applicant is evident by the promotion order dated 28.03.2001
(Annexure-2) in respect of a junior II Shri. S.K. Kohli, respondent No.5. The
applicant contended that the benchmark for promotion to the SAG is 'very good', and
that he has never been communicated any adverse remarks in his service career. He
has stated that as pr order dated 17.08.1995 of the Allahabad Bench of this Tribunal in
OA No. 1837/1994, when the benchmark for promotion is 'very good', the remarks
'good' and 'average' will adversely affect the promotion and have to be communicated.
The applicant also placed reliance on U.P. Jal Nigam Vs. Prabhat Chandra Jain, AIR
1996 SC 1661 contending that if an employee legitimately had earned a 'very good'
report in a particular year which, in a succeeding one, and without his knowledge, is
reduced to the level of 'good' without any communication to him, it would certainly be
adverse and affect him at one or the other stage of his career. In the instant case as
nothing has been communicated to the applicant, his suppression is bad in law.
2. The learned counsel of the respondents stated that the DPC held on 30.11.2000
considered the question of selection of officers for promotion to the SAG of IDAS.
The vacancy position during the year 2000-2001 was 8 vacancies in the general
category and none in the reserved categories. Whereas the DPC examined the
character rolls of the applicant and assessed him as 'good', those assessed as 'very
good' were placed in the panel/extended panel. The applicant was neither placed in
the select panel nor in the extended panel on the basis of his record.
74
3. We have perused the confidential reports of the applicant. We find that no
ACR of the applicant was written for the period from 11.01.1994 to 31.03.1995 as he
had not worked under any Reporting Officer during that period continuously for three
months. It is further noted that the applicant was assessed in category 'good' during
the periods 01.04.1995 to 09.11.1995, 01.04.1997 to 05.03.1998 and 08.12.1998 to
31.03.1999. It is not the respondents' case that as the benchmark for promotion to the
SAG is 'very good', they had communicated the downgraded entries in the applicant's
ACRs during the relevant periods when he was generally categorised as 'good'.
4. In view of the ration of the judgment of the Supreme Court in the case of U.P.
Jal Nigam (Supra) when in view of the criteria of promotion to the SAG down
gradation from 'very good' has an adverse affect on the career of the applicant t was
imperative that such ACRs should have been communicated to him which was not
done in the present case. Thus, we are of the view that ACRs in which the applicant
was categorised as 'good' and which have been described above, are unsustainable.
Consideration of the applicant's case for promotion to the SAG based on the aforesaid
ACRs has to be held as vitiated. In the circumstances, we are left with no alternative
but to hold that non-consideration of the applicant for empanelment to SAG was
irregular and he has to be re-considered ignoring the ACRs for such years when he has
been categorised as 'good' as against the benchmark of 'very good'.
5. We, therefore, in the light of the above discussion quash and set aside the
applicant's assessment as 'good' based on which his case was considered in the DPC
meeting held on 30.11.2000 and direct the respondents to convene a review DPC for
re-considering the applicant's case for promotion to the SAG ignoring the ACRs in
which he was graded as 'good' ad when such ACRs were not communicated to the
applicant. The applicant's claim for promotion to SAG may be considered in the
above terms within a period of three months from the date of receipt of this order as
per rules and relevant instructions on the subject. In this manner, if he is found fit for
promotion to SAG, he may be promoted to the SAG with effect form the date his
immediate junior was promoted, with all consequential benefits.
6. Present OA is allowed in the aforesaid terms. There will be no order as to
costs.
***
75
CHANDIGARH BENCH O.A.NO.1316/HR/2001
D.D.29.10.2002
Hon'ble Mr. Justice O.P.Garg, Vice Chairman Hon'ble Mr. C.S.Chadha, Member (A)
Virender Kumar Verma – Applicant Vs. Union of India & Others – Respondents
Indian Administrative Service (Appointment by Promotion) Regulations, 1955
Held – Select list prepared by the Selection Committee and finally approved by the Commission holds good and remains operative till the meeting of the next Selection Committee to draw up a new selection panel is held meaning thereby the earlier select list shall remain alive and operative only till the date on which meeting of the next Selection Committee takes place. The earlier select list becomes inoperative on the date of the meeting of the subsequent Selection Committee. Further held – The Selection Committee constituted for consideration of the senior members of the State Civil Service for promotion to IAS comprises of high powered Senior Officers. The Chairman or the member of the UPSC has to chair the meeting. The meeting already fixed should not normally be postponed on account of the absence of non-availability of the concerned ex-officio members. In case of some exigency or eventuality, proper arrangement has to be made so that the meeting is not postponed. The expression 'senior most' occurring in Regulation 3 of the Promotion Regulations cannot be said to be sacrosanct. If for certain reasons the senior most financial Commissioner, Secretary of Divisional Commissioner is not available, in that event, he can legitimately be substituted by the next senior most officer of the same rank. After all, the members specified are there by virtue of the particular office they hold.
Cases referred:
1.Civil Appeal Nos.16769 to 16771/1996 Nepal Singh Tanwar Vs.Union of India 2. (1997) 36 ATC 86 M.S.Rao vs. Union of India & Ors. 3. 1997 SCC (L&S) 103 Union of India vs. Mohan Singh Rathore & Anr. 4. (1998) 38 ATC 271 V.R.K. Mohan Rao Vs. Union of India & Ors. 5. (1999) 1 SCC Page 304 S.R.Engineer Vs. Union of India & Ors. 6. 2001(2) AISLJ 81 (CAT) Motilal Gupta Vs. Union of India & Anr. ORDER Justice O.P. Garg, Vice Chairman
The applicant is one of the senior Members of Haryana Civil Service having
been directly recruited to the State Service on 23rd September, 1976. In course of
time, he manned a number of important posts and was allowed senior scale / selection
grade in the year 1998. He was further placed in the super time scale on 1-1-1996. He
fell in the zone of consideration for promotion to Indian Administrative Service (for
short IAS) against the vacancies in the promotion quota for the years 1995-1996. The
76
selection and promotion from the State Civil Service to IAS is regulated by the Indian
Administrative Service (Appointment by promotion) Regulations, 1995 (for short
promotion Regulations). A selection Committee constituted under Regulation 3 was
to meet on 21st March, 1996 but the meeting could not be held on account of stay
order obtained by one Shri S.P. Gupta who was then another / Senior member of the
State Service. The Stay order was ultimately discharged and the Selection Committee
was reconvened for preparing Select List for the year 1995-1996 on 23rd October,
1999. A charge sheet dated 22nd October, 1999 for the alleged delinquencies
committed by the applicant during the period March, 1998 to October, 1998 was
issued i.e. a day before the reconvening of the meeting of the Selection Committee.
The applicant was provisionally empanelled at Sr. No. 4 in the Select List (Annexure
A/2). A vacancy was reserved for him. The disciplinary enquiry initiated against the
applicant could not be completed. He was again considered for promotion to IAS
against the vacancies for the years 1996-1997 and was again provisionally empanelled
at Sr. No. 1 of the select (Annexure A/3). Subsequently, a meeting was held for fill up
the year-wise vacancies by promotion for the years 1999 and 2000. In all the three
separate lists, the name, the applicant respectively found a place at Sr. No. 1, 3, 4 vide
Annexure A/4, his empanelment was obvious provisional. A vacancy was kept
reserved to accommodate applicant on promotion to IAS, should his name was made
unconditional. The next meeting of the Selection Committee held on 28th December,
2001. The applicant was not selected. It is in these circumstances that the applicant
has come forward before this Tribunal by filing the present OA under Section 19 of
the Administrative Tribunals Act, 1985 with the prayer that the select List for the year
2001 be quashed and the Respondents No. 1 to 3 be directed to keep one post of IAS
reserved for him in terms of the provisions of Regulation 9 (a) of the promotion
Regulations by virtue of his selection to the post of IAS on provisional basis against
the vacancies of the years 1995-1996 and onwards. The applicant has also challenge
constitution of the Selection Committee which met on 28th December, 2001 and has
taken the stand that the selection on the private respondents stands vitiated.
2. The Respondent no.3, state of Haryana, has filed a detailed reply taking the
plea that the selection of the applicant for promotion to the IAS against the vacancies
occurring during the various years was provisional subject to clearance of disciplinary
case pending against him; that the earlier select lists lost their life on convening of the
meeting of the Selection Committee to fill up the vacancies of the subsequent years;
that on merits, the applicant has not been selected by the Committee which met in
December, 2001 as penalty was imposed on the applicant after having found him
guilty disciplinary proceedings which fact, it is stated, has been suppressed by him.
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The submission that the constitution of the Selection Committee which met on 28th
December, 2001 was vitiated has also been repelled on the ground that on account of
the non availability of certain members, they were substituted by the next senior most
officers.
3. Heard Shri K.K. Gupta, learned counsel for the applicant; Shri Sanjay Goyal for
Respondents no.1 and 2 ; Shri Sanjay Dahiya for Respondent no. 3 and Shri Suman
Jain for Respondent no.4 at considerable length .
4. To begin with, it may be mentioned that the promotion Regulations have come
into being with a view to provide avenues and opportunities for advancement and
progression in career for the members of the State Civil Service as well as to avoid
stagnation and to give due recognition to their merit and excellence in the discharge of
their public duties. The promotion Regulations are virtually the complete code or
apparatus providing a mechanism for appointment on promotion to IAS from amongst
the Members of the Civil Service. Regulation 3 provides for constitution of the
Selection Committee while Regulation 5 deals with the preparation of the Select List
of suitable Officers. From amongst the officers who fall within the field of
consideration, the Select List is prepared by including the required number of names,
first, amongst officers classified as ‘outstanding’ then amongst those classified as
‘very good’ and thereafter from amongst those classified as ‘good’. A proviso has
been appended to Sub Regulation (5) to Regulation 5 making it clear that the name of
an officer included in the Select List shall be treated as provisional in the State Govt.
with-holds the Integrity Certificate in respect of such an officer or any proceeding,
departmental or criminal are pending against him or anything adverse against him
which renders him unsuitable for appointment to the service has come to the notice of
the State Govt. Regulation 7 deals with the Select List. In Sub-Regulation (3) of
Regulation 7, it is provided that the list as finally approved by the Commission shall
form the Select List of the members of the State Civil Service; provided that if an
officer whose name is included in the Select List is, after such inclusion, issued with a
charge sheet or a charge sheet is filed against him in a Court of law, his name in the
Select List shall be deemed to be provisional. The proviso to Sub Regulation (4) of
Regulation 7 further makes it clear that, “no appointment to the Service under
Regulation 9 shall be made after the meeting of fresh Committee to draw up a fresh
list under Regulation 5 is held’’. Regulation 9 relates to the appointments to the IAS
from the Select List. Second proviso to Sub Regulation (1) of Regulation 9 reads as
follows:-
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“Provided further that the appointment of an officer, whose name has been included or deemed to be included in the Select List provisionally under proviso to Sub Regulation (3) of Regulation 7, as the case may be, shall be made after the name is made unconditional by the Commission on the recommendations by the State Government “during the period the Select List remains in force.’’ While making an appointment of an officer junior to Select List officer whose name has been included or deemed to be included provisional in the select list one post will have to be kept vacant for such a provisionally included officer.’’
In the conspectus of the above relevant provisions made in the promotion
Regulations, let us examine the case of the applicant. It is an indubitable fact that the
applicant having fallen in the zone of consideration has been considered by each one
of the Selection Committees held to fill up the vacancies of the years 1995, 1996,
1998, 1999, and 2000. The applicant found a berth in the Select List prepared for the
respective years though his position / placement varied. In the Select List of the years
1996, 1997,and 1998, his name was on the top. On account of the issue of charge
sheet with regard to the charges which would have resulted in infliction of major
penalty in the event of their proof, the name of the applicant in all the Select Lists was
made provisional and in view of the second proviso to Regulation 9 (1) quoted above,
he should not have been appointed on promotion to IAS unless his name was made
unconditional by the Commission on the recommendations of the State Govt. during
the period the Select List remained in force. It is accepted at all hands that even
though the applicant has been selected for promotion to IAS, his placement which was
provisional, was never made. Unconditional on account of the pendency of the
departmental proceedings against him. Shri K.K.Gupta, learned counsel for the
applicant urged that the charge sheet which was issued on 22nd October, 1999
pertained to the allegations of omission and commission during the period March,
1998 to October, 1998 i.e. after the occurrence of the vacancies of the years 1995-
1996. When the name of the applicant ought to have been considered for promotion.
In substance, the submission of the learned counsel for the applicant is that the
subsequent events cannot be taken into consideration if the conduct of the applicant
was not blames worthy during the period when he became eligible for consideration
for promotion to IAS. We find it difficult to agree with the learned counsel for the
applicant for one simple reason that on the date on which the meeting of the Selection
Committee was held i.e. on 23rd October, 1999, the applicant was undoubtedly facing
a departmental enquiry. Charge sheet had already been issued against him, may be a
day before the date of the meeting. The Selection Committee was bound to take
cognizance of the fact that the applicant was facing a departmental enquiry on the date
on which he was selected and it was for this reason that inclusion of his name in the
list was treated as provisional in view of the proviso to Regulation 5(5) of the
79
promotion Regulations. Even if a person has been duly selected for promotion to IAS,
inclusion of his name may be made provisional if after the selection a charge sheet is
issued to him or if the selected officer finds himself involved in a criminal case.
Proviso to Regulation 7(3) makes the above point clear. Not only this, if a person who
has been unconditionally selected for promotion may be faced with situation that his
name may be removed from the Select List if he is found to have committed a grave
lapse in the conduct or performance of duties (see third proviso to Regulation 7(4).
Therefore, to say that the subsequent events cannot be looked into is nothing but a
subterfuge.
6. It is thus, a stark reality that the inclusion of the name of the applicant, in the
Select List was ‘Provisional’ as some departmental enquiry was pending against him.
The applicant could not be appointed on promotion to IAS from out of the Select List
in which his name found a place on provisional basis till such time it was made
“unconditional’ by the Commission on the recommendation of the State Govt. during
the period the Select List(s) remain (s) in force. Merely on account of the inclusion of
the name on provisional basis in the Select List, the applicant cannot acquire an
indefeasible right to be appointed to IAS, on promotion. The procedure prescribed in
the second proviso to Regulation 9 (1) was required to be followed. While making the
recommendation, the State Govt. is expected to furnish “no deterioration ‘certificate.
The issuance of such a certificate before appointment is mandatory as has been held
by the Apex Court in the case of Union of India Vs. Mohan Singh Rathore and Anr.,
1997 SCC (L&S) page 103. The reason for requirement of issue of “no deterioration
certificate” before appointment of a member of the State Civil Service whose name
has been included “provisionally’’ in the select-list is that the Union Government as
well as the State Government should be sure enough that there has been “no
deterioration’’ in the service of the incumbent in the interregnums as it is mandatory to
know the continued quality, integrity, honesty and efficiency of the officer concerned.
The right of the Central Government to know if there had occurred any deterioration
in the performance of the officer after his name was included in the select-list, which
render him unsuitable for appointment to IAS has further been upheld by the Apex
Court in the case of S.R. Engineer Vs. Union of India and Ors. (1999) 1 SCC page
304. This aspect of the matter is to be taken care of by the State Government, Union
of India and Union Public Service Commission while considering the question of
appointment of the applicant to IAS. In the right of the above facts, the applicant
cannot insist that he should be appointed on promotion to IAS or a vacancy should be
kept reserved for him. As a matter of fact a vacancy was kept reserved for the
applicant during the relevant years while making appointment of junior officers in the
80
Select List, in view of the second proviso to Regulation 9(1). A vacancy cannot be
kept reserved for the applicant for an indefinite period on the basis of the earlier
selections at the proviso on which the applicant has placed reliance clearly stipulates
that the provisional appointment is to be made unconditional ‘during the period the
Select List remains in force’.
7. Now let us examine whether the earlier Select List in which the name of the
applicant was included for promotion though on provisional basis still survives or not.
The last Selection Committee met on 28th December, 2001. The applicant was not
selected for one simple reason that he had been subjected to a penalty of stoppage of
two increments without cumulative effect by order dated 25th July, 2000. We are
constrained to mention that the applicant has deliberately concealed this fact in the
averments made in the OA, knowing it fully well the consequences of the order of
punishment. Since the applicant had been punished after departmental enquiry, the
question of making his candidature as ‘unconditional’ did not arise and in the
circumstances the State Government could not issue ‘no deterioration’ certificate.
There are other charges against the applicant. In the last Select List prepared in the
year 2001, the name of the applicant has not been included obviously after taking into
consideration the order of imposition of the penalty against him pursuant to a
departmental enquiry. Even otherwise the applicant cannot take advantage of the
inclusion of the name in the previous Selection Lists as each one of the lists stood
lapsed on the date on which the Selection Committee to draw up fresh list under
Regulation 5 met. The 1st proviso to Sub Regulation (4) of Regulation 7 makes the
position clear. It provides that no appointment to the Service under Regulation 9 shall
be made after the meeting of the fresh committee to draw up a fresh list under
Regulation 5 is held. This provision came to be considered with reference to the life
of the list prepared by the Selection Committee on earlier occasions, in a number of
decisions. In a recent decision of the Jaipur Bench of this Tribunal in O.A. NO.
509/1996 – N.R.Yadav Vs. Union of India & Ors., decided on 3-6-2002, after taking
into consideration the decision of the Apex Court in the case of Nepal Singh Tanwar
Vs. Union of India, (Civil Appeals No. 16769 to 16771 of 1996 decided on 9th
December,1996). as well as Division Bench decisions of Chandigarh Bench in N.S.
Rao Vs. Union of India & Ors. (1997) 36 ATC 86, Hyderabad Bench in the case of
V.R.K. Mohan Rao Vs. Union of India & Ors.,(1998) 38 ATC 271 and Jaipur Bench
in the case of Motilal Gupta Vs. Union of India & anr. 2001 (2) AISLJ 81 (CAT),
has made a concise statement of law that the Select List prepared by the Selection
Committee and finally approved by the Commission, holds good and remains
operative till the meeting of the next Selection Committee to draw up a new selection
81
panel is held, met thereby, the earlier Select List shall remain alive and operative only
till the date on which meeting of the next Selection Committee takes place. The
earlier Select list became inoperative on the date of the meeting of the subsequent
Selection Committee. As stated above, the applicant has not been selected for
promotion by the Selection Committee which held its meeting on 28-12-2001. Each
one of the Select Lists of the years 1998,1999 and 2000 compendiously marked as
Annexure A/4 came to an end on the date of successive meetings. The applicant
cannot, therefore, stake his claim for appointment on promotion to IAS on the basis of
the inclusion of his name in the earlier Select List. Now on merits, his case for
promotion has been finally throttled, as he was not selected by the Selection
Committee which met on 28-12-2001 and the earlier lists became inoperative.
8. A short and swift reference may be made to the feeble submission made on
behalf of the applicant that the Selection Committee which met on 28th December,
2001 was not legally constituted. Regulation 3 makes a provision about the
constitution of the Selection Committee. As per schedule applicable to the State of
Haryana, the following officers were to be the members of the Selection Committee
besides the Chairman or the Member of the Union Public Service Commission who
was to preside over the meeting of the Committee:-
(1) Chief Secretary to Govt.
(2) Senior most Financial Commissioner.
(3) Senior most Divisional Commissioner.
(4) Senior most Secretary to Govt./Commissioner.
(5) Two nominees of the Govt. of India not below the rank of Joint Secretary.
Shri K.K.Gupta, learned counsel for the applicant urged that in place of the officers
mentioned at Sr. No. 2,3,and 4 above, some other officers were purposely made the
members who were averse to his interest and future prospects. In the reply filed by the
Respondent no. 3 – State of Haryana, it has been specifically mentioned that the senior
most Financial Commissioner was on tour and the senior most Commissioner and
Secretary and the senior most Divisional Commissioner were on leave and, therefore,
the next senior most Financial Commissioner, the next senior most Commissioner and
Secretary and the next senior most Divisional Commissioner were deputed to attend
the meeting and, therefore, the composition of the Committee was as per Regulation 3
of the promotion Regulations. Shri K.K.Gupta appeared to be of the view that the
officers who are specified in the Regulations cannot be substituted by other senior
officers as there is no provision of substitution in the Promotion Regulations. The
submission of Shri Gupta though attractive, is impracticable. The Selection
Committee constituted for consideration of the senior members of the State Civil
82
Service for promotion to IAS comprises of high powered Senior Officers. The
Chairman or the member of the UPSC has to chair the meeting. The meeting already
fixed should not normally be postponed on account of the absence or non-availability
of the concerned ex-officio members. In case of some exigency or eventuality, proper
arrangement has to be made so that the meeting is not postponed. The expression
‘senior most’ occurring in Regulation 3 of the promotion Regulations cannot be said to
be sacrosanct. If for certain reasons the senior most Financial Commissioner,
Secretary or Divisional Commissioner is not available, in that event, he can
legitimately be substituted by the next senior most officer of the same rank. After all,
the members specified are there by virtue of the particular office they hold. It is not a
persona designate membership. With a view to advance the purpose and object of the
constitution of the Selection Committee, we think it proper to read the expression
‘available’ after the connotation ‘senior most’, meaning thereby, if the senior most
Financial Commissioner is absent, in that event, the next available senior most
Financial Commissioner may be made the member of the Selection Committee. It
cannot be said that all the three senior officers i.e, next to the senior most Financial
Commissioner, Commissioner and Secretary and the Divisional Commissioner had a
pique or grudge against the applicant. A wild allegation or a tall submission does not
provide a mileage to the applicant, particularly, when there is no tangible evidence of
malice and bias having been entertained by the three senior officers who were
substituted as members of the Selection Committee. In our view the constitution of
the Selection Committee which met on 28th December, 2001 cannot be faulted on any
ground.
9. In the result, the present OA turns out to be devoid of any merit and substance.
It is accordingly dismissed without any order as to costs.
***
83
List of Circulars issued by UPSC containing summary of the cases with relevant portions of judgment/order of S.C./H.Cs/C.A.T.
S.No. Subject Date 1. Summary of the Judgement delivered by the Hon'ble
High Court, Delhi, on C.W.No.3745/99 regarding rejection of applications received after the closing date.
10.02.2000
2. Summary of the Judgement delivered by the CAT, Bangalore on O.A.No.20/2000 filed by Dr.J.C.Sharma Vs. Union of India & Ors.
11.02.2000
3. Summary of the Judgement delivered by the CAT, Bangalore on O.A.No.19/2000, filed by Dr.Dedutso Kapof Vs. U.P.S.C.
10.09.2000
4. Summary of the Judgement delivered by the CAT, New Delhi in OA No.1784/97, 1785/97 & 1787/97 filed by Dr.H.K.Pal, Dr. Neeraj Pandit and Dr.L.H.Gupta Vs. Union of India & Ors (including U.P.S.C.)
04.10.2000
5. Summary of the Judgement delivered by Hon'ble Supreme Court of Civil Appeal No.675/2000 filed by the Union Public Service Commission V/S Jagannath Mishra
30.01.2001
6. Summary of the Judgement delivered by the CAT, Hyderabad bench on OA No.925/99 filed by Sh.K.Srinivasa Rao Vs. U.P.S.C. & Ors.
20.11.2001
7. Summary of the Judgement delivered by the CAT, Hyderabad Bench on OA No.925/99 filed by Sh.K.Satyaprasad Vs. U.P.S.C. & Ors.
20.11.2001
8. Summary of the Judgement delivered by the CAT, Ahmedabad Bench on OA No.504/94 filed by Smt.Anita P Rawal Vs. U.O.I. & Ors.
16.01.2002
9. Summary of the Judgement delivered by the CAT, New Delhi on OA No.1285/2001 filed by Sh.Sanjiv Kumar Vs U.P.S.C. & Os.
13.02.2002
10. Summary of the Judgement delivered by the CAT, Ahmedabad Bench on OA No.423/2000 filed by Sh. R.L.Pathak Vs. U.P.S.C. & Ors.
04.03.2002
11. Summary of the Judgement delivered by the CAT, Chandigarh on OA No.37/CH 97 filed by AH. A.S.Bawa & Dr.Atul Sachdev, Vs Administrator, UT, Chandigarh
15.03.2002
12. Summary of the Judgement delivered by the Karnataka High Court, Bangalore on W.P.No.35839/2000 (S-CAT) filed by Sh.Dr.J.C.Sharma Vs. UOI & Ors.
05.04.2002
84
UNION PUBLIC SERVICE COMMISSION RECRUITMENT (C & P) SECTION
Dated: 10th February 2000.
Subject: Judgment delivered by the Hon'ble High Court,
Delhi on C.W. 3745/99, regarding rejection of applications received after the closing date.
************
Vide it's Judgment delivered on the above mentioned case, the Hon'ble High
Court of Delhi has upheld the authority of the commission to reject the applications
received after closing date eve if the candidate had posted the application before the
closing date, pointing out that the advertisement of the commission contains clear
instructions in this regard.
The operative part of the Judgment is reproduced below:-
"We do not agree with the submissions of learned Counsel for the petitioner. The aforesaid advertisement had adequately made clear to the candidates that in the event of the applications being received after the prescribed date due to postal delays, the applications shall be summarily rejected.
It needs to be noticed that the Union Public Service Commission which has to deal with several thousands applications cannot be compelled to accept applications after stipulated date as that would delay the process of completion of the selections. It was for the petitioner to have applied sufficiently in advance so that the application could have reached the Union Public Service Commission by or before the stipulated date. The writ petition accordingly fails and is hereby dismissed".
Circulated among all concerned Officers/Sections in the Recruitment wing for
information and guidance.
***
85
No.F.25/4/97-R(C&P) UNION PUBLIC SERVICE COMMISSION
RECRUITMENT (C & P) SECTION
Dated: 11th February 2000.
CIRCULAR No. 3/2000
Subject: Judgment delivered by the CAT, Bangalore on
OA No, 20/2000, filed by Dr. J.C. Sharma Vs Union of India & Ors.
*********** The grievance of the applicant was that though he had the requisite
qualification for the post of Director at Central Institute of Indian Languages, Deptt. of
Education, he was not called for interview. The applicant contented that the age limit
for direct recruitment should have been increased by two years on the basis of Central
Civil Services and Civil posts (Upper age limit for direct recruitment) Rules, 1998.
The operative part of the Judgment delivered by the CAT, Bangalore is re-
produced below:-
"2. The applicant has sought to rely upon the Central Civil Service and Civil Posts (Upper age limit for direct recruitment) Rules, 1998 to contend that the age limit for direct recruitment should be increased by 2 years. Annexure A-1 is the rule relied upon by the applicant. Those rules are applicable for direct rectt. by competitive examination. In the instant case, the recruitment is not by competitive examination and those rules do not apply. As the applicant was not within the age limit as on the last date prescribed in the advertisement, he was ineligible and we do not find any good ground to entertain this application. The same is rejected".
Circulated for information and guidance among all Officers/Sections in the
Recruitment Wing.
***
86
No. F. 25/4/97-R(C&P)
UNION PUBLIC SERVICE COMMISSION RECRUITMENT (C & P) SECTION
Dated: 10th September 2000.
Subject: Judgment delivered by the CAT, Bangalore on
O.A. No.19/2000. filed by Dr. Kedutso Kapof Vs. U.P.S.C & Others.
***************
The grievance of the petitioner was that though the Union Public Service
Commission issued interview letter to several candidates, the application of the
petitioner was not considered and over looking the greater experience than the
applicant had in the area of teaching/research and the fact that he was otherwise
eligible, certain other candidates were called for interview. The petitioner complainer
that the denial of interview to him was arbitrary and in violation of the provisions of
Articles 14 and 16 of the Constitution of India.
The operating part of the judgment delivered by the CAT, Bangalore is
reproduced below:-
" It appears to us that the criterion of experience in teaching/research after obtaining Ph.D., for a period of 12 years or more, as adopted by the UPSC can certainly be brought within the ambit of the expression "expression "experience higher than the minimum prescribed". There can be little doubt that the experience in teaching/ research acquired by a candidate after he has obtained a doctorate degree will be of a higher quality than similar experience over the same period of time., partly or wholly before he acquired the Doctorate degree. We, therefore, hold that applying the yardstick of post-doctoral experience of 12 years and more in teaching/research for the purpose of short listing the candidates for the interview by the UPSC is perfectly valid and legal in these circumstances. We are also not impressed by the argument advanced on behalf of the applicant that application of that yardstick would be in contravention of the provision of the Recruitment Rules and, therefore, was invalid on that score. As we have already observed, the Recruitment Rules only provide for the basic eligibility conditions and among those who satisfy the basic the basic eligibility conditions prescribed under the Recruitment Rules, a Agency/Body like UPSC is fully competent to shortlist the candidates further for the next stage in selection, i.e., for candidates further for the next stage in selection, i.e. for interviewing them. This is clearly the valid position in law and the action of the UPSC in short listing the candidates based on experience higher than the
87
minimum prescribed reckoned in terms of post- doctorate experience cannot be issued on this court".
Circulated for information and guidance among all Officers/Sections in the
Recruitment Wing.
***
88
F.25/3/2001-R(C&P)
UNION PUBLIC SERVICE COMMISSION
RECRUITMENT (C&P) SECTION
New Delhi, 30th January 2001.
Subject: Judgment delivered by Hon'ble Supreme Court on Civil Appeal No. 675/2000 filed by the Union Public Service Commission Vs. Jagannath Mishra.
This appeal was filed by the Union Public Service Commission against the
impugned Judgment of the Division Bench of Patna High Court affirming the
Judgment of the CAT, which set aside the order of punishment inflicted upon Sh.
Jagannath Mishra, by the Commission. The order of punishment debarring Sh.
Jagannath Mishra from appearing in any competitive exam for a period of 10 years
was imposed on him by the Commission alleging copying in the examination.
The operative part of the Judgment delivered by the Hon'ble Supreme Court is
re-produced below:
"We are of the considered opinion that the Tribunal committed serious error in
interfering with the conclusion of the UPSC and in interfering with the punishment
awarded by it. The High Court also committed error in affirming the said decision of
the Tribunal. It is true that there has been no report from the invigilator indicating any
mal practice by the respondent or the person who was sitting behind him. But, mere
absence of such report would not be sufficient to exonerate the delinquency, of such
report would not be sufficient to exonerate the delinquency, if otherwise a conclusion
could be arrived at that but for the assistance of the respondent the candidate sitting
behind him could not have copied in the manner he has done. The Tribunal as well as
the High Court committed serious error by giving extra weightage for the absence of
any report from the invigilator. It cannot be held as a principle that wherever there is
no report from the invigilator indicating adoption of mal practice in any examination
the Appropriate Authority cannot come to the conclusion about the adoption of mal
practice. It would always be a case depending upon the materials produced and there
would be no bar for an expert body to come to a definite conclusion about adoption of
mal practice in an examination even in the absence of a report of the invigilator to that
effect. It would always be a question of fact to be decided on the basis of materials
produced before the Expert Body.
89
In our considered opinion, on the materials available, the ultimate conclusion
of the UPSC cannot be held to be a conclusion of an unreasonable man so as to be
interfered with by a Court of Law. We, therefore, set aside the impugned decision of
the Tribunal as well as that of the High Court, but so far as the punishment is
concerned, having regard to the facts and circumstances of the present case, we direct
that the debarment in question will be for a period of 3 years. The appeal is allowed to
the extent indicated above".
Circulated among all Officers/Sections in the Recruitment Wing for
information.
***
90
F.25/3/2001-R(C&P)
UNION PUBLIC SERVICE COMMISSION
RECRUITMENT (C&P) SECTION
New Delhi, 22nd March 2001.
Subject: Judgment delivered by the CAT, Hyderabad on O.A No. 1697/99, filed by Sh. K Srinivasa Rao Vs. Union Public Service Commission & others.
***********
An applicant filed the above mentioned OA seeking relief on his non-selection
and against the appointment of another candidate for the post of Customs Appraiser,
for which selection was made by the Commission vide Advt. No. 3 of 1998.
Vide it's Judgment dated 29.12.2000, delivered in this case, the CAT,
Hyderabad upheld the authority of the Commission to shortlist the candidates, giving
due weightage to professional qualifications such as M.A/M.Phil/Ph. D. etc.
The operative part of the Judgment dated 29.12.2000, delivered in this case,
the CAT, Hyderabad is reproduced below:
"In the instant case, however, so long as the Recruitment Rules issued under Article 309 of the Constitution provides for "Qualifications are relaxable at the discretion of the Union Public Service Commission in case of candidates otherwise well qualified", and this principle having been incorporated in the notification issued by the Union Public Service Commission (which unfortunately did not get printed in the Employment News 14-20 February 1998), and the same weightage having been extended uniformly, we do not find any arbitrari0ness in the decision in having given weightage in the experience for higher academic qualification.
AIR 1990 SC 434 (Dalpat Abasahed Salunke V.B.S. Mahajan) dealt with a case where a case where a Committee consisted of experts selected certain candidates which selection was set aside on the ground of the comparative assessment on merit by the High Court. This decision of the High Court was set aside by the Supreme Court. In the instant case, however, no malafides have been attributed to the expert members of the selection Committee nor have we found the selection process vitiated on any grounds. In fact, we appreciate the pains taking effort put in not only by the Union
91
Public Service Commission but also by the Interview Board in the selection process. We are fortified by the decision given in AIR 1976. The SC 1404 (Maheshwar Prasad Srivastava V. Suresh Singh) which held that, "In matters involving consideration of questions regarding adequacy or sufficiency of "training", the Public Service Commission, having the benefit of expert opinion, is better situated to judge whether the particular candidate is qualified for a particular post and High Court under Article 226 should hesitate to interfere with the direction o the appointing authority, so long as it is exercised bona fide".
Circulated among all officers/sections in the Recruitment Wing for
information.
***
92
F.25/3/2001-R(C&P)
UNION PUBLIC SERVICE COMMISSION
RECRUITMENT (C&P) SECTION
New Delhi, 20th November 2001.
Subject: Judgment delivered by the CAT, Hyderabad Bench on O.A No.925/99, filed by Sh. K. Satyaprasad Vs. Union Public Service Commission & Ors.
**********
This OA was filed by Sh. K. Satyaprasad alleging that the Union Public
Service Commission committed mistake by selecting another candidate – respondent
No.3 in this case – for the post of Deputy Director in the M/o Food & Consumer
Affairs.
The respondent No.3, who ranked 2nd in the Selection List, was appointed to
the above post., consequent upon cancellation of appointment of the originally
selected candidate whose selection was found to be irregular by the Commission.
The applicant claimed that the appointed candidate did not posses the essential
eligibility conditions for the post as per the notification of the Commission and the
applicant being more qualified than him should have been selected and appointed to
the post in question.
The respondents in their reply contested that consequent upon cancellation of
candidature of the originally selected candidate, the respondent No. 3 i.e., the next
candidate in the Selection List was recommended for appointment by the Commission
subject to verification of his claim of possessing specialisation in Plant Pathology.
The claim of respondent NO.3 was got confirmed from the Registrar of the concerned
University by the Ministry before the offer of appointment was issued to him. The
applicant argued that the Registrar much less the Dy. Registrar are not the proper
authorities or functionaries to make observation or comments on such highly
sophisticated areas like specialisation and as such the confirmation by the University
can hardly be an authentic assessment of the qualification.
The CAT, Hyderabad, dismissed this OA vide order dated 31.08.2001, the
operative part of which is reproduced below:
"It is not in dispute that applicant got his degree from a recognised University.
It is also not in dispute that R-3 was in the 2nd place in the select List. As there was a
93
mistake committed in selecting Sri. Kulkarni, UPSC thought it proper to verify the
qualification before issuing the appointment letter and advised the Ministry to get the
qualification of R-3 verified before issuing the appointment letter and the Ministry got
it verified by approaching the registrar of Kumaon University and after getting
confirmation, issued the appointment letter. Approaching Registrar, of a recognised
University of getting the confirmation of qualification cannot be said to be unjustified
or wrong UPSC is better situated to judge whether the particular candidate is
qualified No.3 and decided to verify the qualification before issuing the appointment
letter.
Under the above circumstances, we do not find any reason to interfere will
such decision when there is no mala fide in it.
Accordingly, OA is dismissed".
Circulated for information and guidance among all Officers/Sections in the
Recruitment Wing.
***
94
F.25/3/2001-R(C&P)
UNION PUBLIC SERVICE COMMISSION
RECRUITMENT (C&P) SECTION
New Delhi, 16th January 2002.
Subject: Judgment delivered by the CAT, Ahmedabad Bench on OA No. 504/1994, filed by Smt. Anita P Rawal Vs. U.O.I. & Others. (Dealt in File No. F25/47/94-R(C&P)/R.IVRectt. File NO. F.1/72/92-R.IV)
**********
Brief facts relating to the case are given below:-
The appellant Smt. Anita P Rawal was an applicant for a post in the Junior
grade of Indian Information Service. The applicant was interviewed provisionally and
was asked by the Commission to send proof that the diploma in Journalism held by
her – which was from the Navgujarat Multi Course Training Institute – is from a
recognised institute. From the documents submitted by her, in reply, it was observed
that there is no mention that the diploma in journalism awarded by the institute is
recognised by the Govt.
The appellant had also claimed that one Kum. Kalpana Acharya, who is having
the same qualification was interviewed and selected for the post of Programme
Executive in All India Radio, by the UPSC and as such the applicant can not be
discriminated against. This argument was contested by the respondents on the ground
that there was no conscious decision taken in the case of Kum. Kalpana Acharya and
in any case she belonged to a much earlier batch and that the applicant has no right to
claim that if a mistake had been committed in one particular case, the same should be
committed in her case also.
The CAT, Ahmedabad dismissed the claims of the applicant vide it's judgment,
the operative part of which is reproduced below:
"When she asserts that the diploma held by her is a recognised one, the burden
is on her to substantiate this assertion. She cannot pass on the same to the UPSC to
make a roving inquiry whether it was a recognised Diploma or not and ask them to
produce the service record of some other officer. The reliance on the case of Kalpana
Acharya is also not helpful in the light of the clear statement of the UPSC that no
conscious decision was taken in her case with regard to the recognition of the diploma
course conducted by the Navgujarat Multi – course Training Institute and that her
95
name was included by mistake. There is force in the statement of Mr. Rao that a
mistake committed in Kalpana's case or in any other case (when in any case they
belong to different recruitment periods) does not give a right to the applicant to claim
that the same error should be committed in her case also. If she asserts that it is
recognised by the government of Gujarat, she has to establish the same. If the papers
in the Institute are destroyed by fire she could have approached the Government of
Gujarat and got a certificate from them. She has not done so. It is for her to
substantiate her statement that she holds the essential qualifications as laid down in the
advertisement. While she has given some documents which are of doubtful merit, she
has not effectively discharged her burden by producing a certificate either from the
Government of Gujarat or from any University. The UPSC has gone on the basis that
the Union Ministry of Education have not recognised the diploma in Journalism
awarded by the Navgujarat Multi-Course Training Institute.
In the circumstances, we do not see any infirmity in the order of the
respondents. The OA is dismissed.
Circulated for information and guidance among all Officers/Sections in the
Recruitment Wing.
***
96
F.25/3/2001-R(C&P)
UNION PUBLIC SERVICE COMMISSION
RECRUITMENT (C&P) SECTION
New Delhi, 13th February 2002.
Subject: Judgment delivered by the CAT, New Delhi on OA No. 1285/2001, filed by Sh. Sanjiv Kumar Vs. UPSC & Others. (Court Case file No. F.25/27/2001-R(C&P)R.IV Rectt. File No. 566/96-R.IV)
**********
Brief facts relating to the case are mentioned below:-
The appellant Sh. Sanjiv Kumar was an applicant for a post of Deputy
Director, in Deptt. of Education, for which applications were invited by the
Commission. The applicant claimed age relaxation as a Govt. Servant and furnished a
certificate from his employer to the said effect. However it was found out that the
applicant was not a Govt. Servant. Thereafter, he sought age relaxation as a
meritorious sportsperson by producing certificate from the Delhi State Amateur
Athletic Association indicating that he had represented the state in Marathon. The
same also did not find favour with the UPSC, who did not consider the case of the
applicant. This OA was filed by the applicant challenging this stand taken by the
Commission. However, the Hon'ble CAT, New Delhi vide their judgment dated
17.10.2001, upheld the decision of the Commission. The operative part of the
judgment delivered by the Hon'ble CAT, New Delhi is reproduced below:
"We have carefully considered the matter specifically in the light of the instructions of the DOP & AR earlier and DOPT later with regard to the eligibility of persons for being recruited against Group 'C' & 'D' Posts from the category of meritorious an outstanding sportsmen. The scheme itself has been formulated to ensure that in the matter of appointment through direct recruitment, Govt. should have special consideration to person who have represented the country or the state or the University or the school in representative tournaments or persons who have obtained national awards in physical efficiency or those persons who have represented the state/UT/University state, school through could not obtain a medal or position. The relevant and specific expression used is the 'representation of the country at international level, of the state at the national level, of the university at Inter University level and of the school at inter school level and winning medal or positions". Thereafter, persons who were awarded National award in physical efficiency and lastly those who have participated at the various level even if they had not obtained and produced a certificate from DSAAA showing that he has participated in Half Marathon (21 Km) conducted by the makers of Rath vanaspati in conjunction with the Amateur Athletic Federation of India and the National Institute of Sports.
97
"........................This does not bring him in any of the five categories indicated in the letters of DOP & AR & DOPT outlining the basic qualification and requirements for being considered for appointment in any post against the quota meant for meritorious or outstanding sportsmen. Once he is not eligible to be considered for appointment against the quota for meritorious or outstanding sportsmen, the question of any age relaxation does not even arise. The respondents have acted correctly and legally and there is no justification at all for assailing the decision.
Circulated among all Officers/Sections in the Recruitment Wing for
information and guidance.
***
98
F.25/3/2001-R(C&P)
UNION PUBLIC SERVICE COMMISSION
RECRUITMENT (C&P) SECTION
New Delhi, 4th March 2002.
Subject: Judgment delivered by the CAT, Ahmedabad Bench on OA No. 423/2000, filed by Sh. R.L. Pathak Vs. UPSC & Others. (Dealt in File No. F.25/58/2000-R(C&P/R.V) Rectt. File No. 1/276/92-R.V)
**********
The grievance of the applicant, Sh. R.L. Pathak was that he was not called for
interview despite possessing the required qualifications for the post of Superintendent
in the Central Excise in the Board of Excise and Customs for which he was an
applicant, pursuant to an advertisement of the Commission. He had also alleged that
contrary to one of the instruction contained in the advertisement – viz., "The candidate
will be informed of the result of their applications in due course and any interim
inquiries about the result are therefore unnecessary and will not be attended to". – he
was not informed of the fate of his application also.
The Hon'ble CAT. Ahmedabad vide their judgment dated 05.12.2001
dismissed the contention of the applicant in the process upholding the authority of the
Commission to shortlist the candidates to be called for interview.
The operative part of the judgment is reproduced below:
"..........Even if for a moment we agree with the submission of the applicant that
he had sufficient experience it was always open for the UPSC or the selection body to
shortlist the candidates and all only those who are more meritorious. The experience
factor shown by the applicant might not be sufficient to call him for the interview for
the said post as more experienced persons might be available. It is for the UPSC to
consider the cases of each candidate on their own merit and we do not see any reason
to interfere with the discretion exercised by the UPSC therein. The applicant cannot
claim by way of right to be called for interview when he was not possessing necessary
educational as well as experience qualification. We also do not see any reason to
condone the delay in filing the OA as the applicant has waited for more than 7 years
after the result of the selection was notified. The UPSC is not bound to inform each
and every candidate the out come of his application and therefore it was necessary on
the part of the applicant to be vigilant enough to find out what had happened so far the
99
impugned advertisement was concerned. The applicant must know that the result of
the selection carried out by the UPSC are generally declared in the Employment News
and ought to have referred to that Employment News. It does not lie in his mouth to
say because he was of Baroda ad deputed at Lucknow he had not known the result of
the selection to the post of Superintendent. We therefore do not find any merit in this
OA as well as do not see any sufficient cause advanced by the applicant for condoning
the delay in filing this OA.
Circulated in the Recruitment Wing for information and guidance of all
concerned.
***
100
F.No.25/3/2001-R(C&P)
UNION PUBLIC SERVICE COMMISSION
R(C&P) SECTION
New Delhi, 15th March 2002
Subject: Judgment delivered by the CAT, Chandigarh on OA No. 37/CH/97 filed by Sh. A.S. Bawa & Dr. Atul Sachdev Vs. Administrator, UT, Chandigarh, [Court Case file No.F.25/7/97-R (C&P)/R-I] (Rectt. File No. F.1/475/95-R1).
************
The applicants filed the OA praying for regularisation of their services to the
post of Senior Lecturer in Medicine and Surgery, Govt. Medial College, Chandigarh, a
post for which they were appointed ad-hoc basis, and also for issue of a direction to
the UPSC not proceed with the process of selection for the above post which was
advertised by the Commission, for appointment on regular basis. The applicant
claimed that they have bee appointed for the post in question after undergoing the
process of selection by the Departmental Selection Committee and as such they
deserve regularisation of their service without undergoing the process of selection
once again through the UPSC.
The Hon'ble CAT, Chandigarh, while dismissing the claims of the applicants
held that it is only the UPSC who after conducting selection for the post in question
can recommend a candidate for regular appointment. The operative part of the
judgment is reproduced below.
"It is an admitted case of the parties that one of the applicants was appointed
on ad-hoc basis and the other applicant was appointed on contract basis only and they
have been continuing as such. The letter of appointment shows that they were
appointed only as a stop gap arrangement. The power to offer regular appointment for
such like post vests with the UPSC and it is only UPSC who after conducting selection
for the post in question can recommended a candidate for regular appointment.
UPSC in their reply had stated in clear terms that they have no policy to
regularise the ad-hoc employees of a Department. However, ad-hoc employee can
participate inn the selection process and since in this case the applicants had also
applied, they were assigned roll numbers, so they could participate in the selection
process. Since UPSC has no policy for regularisation of the ad-hoc appointees of the
Department, we find that no directions ca be issued to UPSC to regularise the
101
applicants. Hence, we find that the OA has no merits and no interference is called for
and the same is dismissed"
Circulated in the Recruitment Branch for information of all concerned.
***
102
F.No.25/3/2001-R(C&P)
UNION PUBLIC SERVICE COMMISSION
RECRUITMNT (C&P) SECTION
New Delhi, 5th April 2002
Subject: Judgment delivered by the Karnataka High Court, Bangalore on W.P.No. 35839/2000[S-CAT] filed by Sh. Dr.J.C. Sharma Vs. UOI & others.
Court case file No. : F.25/72002-R(C&P)R.IV Rectt. File No. : F.1/414/97-R.IV
The Petitioner, Dr. J.C. Sharma, was an applicant for the post of Director,
Central Institute of Indian Languages, Mysore advertised by the UPSC. The
prescribed age limit for the post was 50 years, relaxable upto 5 years for Govt.
Servants. The petitioner had already completed 55 years of age and accordingly was
not called for interview. Feeling aggrieved, he approached the Tribunal by filing OA
No. 20/2000 and contended that there should be a further relaxation of age by another
two years having regard to the provisions of Central Civil Services and Civil posts
[Upper age limit for Direct Recruitment] Rules, 1998. The said contention was not
accepted and the application was rejected by the Tribunal.
The applicant filed this WP in the High Court of Bangalore against the above
decision of the Tribunal. The Hon'ble Karnataka High Court, Bangalore rejected the
contentions of the applicant vide their judgment dated 29.10.2001, the operative part
of which is re-produced below:-
"The Rules relied on by the petitioner provides for relaxation of age limit by two years, by increasing the upper age limit, only for recruitment by direct open competitive examination method to the Central Civil Services and Civil posts specified in the relevant services recruitment rules. The Rules also clarify that 'Direct Open Competitive Examination' means direct recruitment by open competitive examination conducted by UPSC or Staff Selection Commission or any other authority under the Central Government and shall not include recruitment through limited departmental examination or by short listing or by interview. As rightly held by the Tribunal, relaxation of upper age limit by two year is therefore not applicable to the post of Director of CIIL Mysore, which is not by way of direct open competitive examination. Petitioner
103
is therefore not entitled to claim increase of upper age limit by two years. We do not find any merit in this petition. Accordingly it is rejected".
Circulated in the Recruitment Wing for information and guidance of all concerned.
***
104
ARUNACHAL PRADESH PUBLIC SERVICE COMMISSION
105
GAUHATI HIGH COURT ITANAGAR BENCH W.P.(C)51(AP) 2000
D.D. 6.2.2002
The Hon'ble Mr. Justice P.G.Agarwal
Shri Misa Gamlin – Petitioner Vs. State of A.P. & Ors. – Respondents
Recruitment to the post of EO (Agriculture) – Grievance of the petitioner that 2 other candidates who had secured less marks than himself were selected to the post of EO (Horticulture) – The said candidates had given their option for the post of EO (Horticulture) whereas the petitioner had given his option for EO (Agriculture) only – Hence, writ petition dismissed as devoid of merit.
JUDGMENT
Heard Mr. R. Deka, learned counsel for the petitioner Mr. T. Pertin, learned
counsel of the APPSC, Mr. I Riram, learned Govt. Advocate for the State respondents
as well as Mr. G. Ete, learned counsel for the private respondents.
Pursuant to the advertisement dated 26.03.1998 issue by the APPSC the
petitioner participated in the Selection process for the post of EO (Agriculture). In the
select list published on 20.01.1998, the petitioner's name was not included and hence
the present writ application.
It may be mentioned that another writ petition No. WP (C) 253/99 preferred by
the petitioner challenging the selection process on the ground that instead of
prescribed 50 per cent marks allotted for viva-voce test the Commission allotted 100
per cent marks. The said writ petition was disposed of by this Court order dated
10.08.99 directing the Commission to allot 50 per cent marks for the viva-voce test
instead of 100 percent. The process was carried out and thereafter considering the
merit of the candidates on the basis of the 50 per cent marks allotted for the viva-voce,
merit list was published and the recommendation was made. The petitioner secured
altogether 241 marks and as such his name does not appear in the merit list as the
merit list for the post of EO (Agriculture) closed above 260 marks. On the other hand,
4 other candidates who secured more marks than the petition were not included in the
merit list.
The grievances of the petitioner in this case is, that two candidates whose name
were recommended by the commission for the post of EO (Horticulture) secured less
106
marks than the petitioner. If is stated that the candidates whose names were
recommended secured 240.5 marks and the petitioner secured 241 marks. The
petitioner plea is that had he had given 2nd option for the post of EO (Horticulture) and
as such his name would have been recommended. It is however, submitted that there
was a combined examination for both the posts.
On perusal of the advertisement issued by the Commission it is seen that a
combined written examination was provided for both posts. There is nothing in the
advertisement to show that interview/viva-voce was to be combined for both the posts.
The respondent-Commission come up with the specific case that the interview for the
posts of EO(Horticulture) were held separately and candidates were allowed to
participated in one interview on the basis of the option given by them. There is no
dispute at bar, that the petitioner had given his option in respect of the posts that the
petitioner had given his option in respect of the posts of EO(Agriculture) only. I have
perused the relevant file where in also against the name of the petitioner, his option for
EO(Agriculture) only is shown.
On perusal of the records produced by the Commission, the candidates for both
the posts of EO (Agriculture)/EO (Horticulture) were recommended on the basis of the
joint Entrance examination and viva-voce examination which was held separately for
this two posts.
Hence, the petitioner cannot have any grievance that he secured more marks
than the candidates who were commended for he post of EO (Horticulture) when the
fact remains that the petition was interviewed for the posts of EO (Agriculture) only as
per his own preference.
In view of the above, I find no merit in this petition. Writ petition stands
dismissed. No costs.
***
107
W.P.(C) No.1028(AP) 2001 D.D. 6.2.2002
The Hon'ble Mr. Justice P.G.Agarwal Shri Tabiram Yirang & Anr. – Petitioners Vs. The Chairman, Arunachal Pradesh P.S.C. & Ors. – Respondents Recruitment to fill up vacancies of Lecturers – PSC made selection as per relevant Rules and forwarded the list of selected candidates against notified vacancies.
Grievance of the petitioners is that P.S.C. ought to have sent the list of all
qualified/eligible candidates without restricting to the number of vacancies. Held – There cannot be any selection in respect of anticipated vacancies – Writ Petition dismissed.
Case referred:
1987 (Supp) SCC 401 State of U.P. Vs. Rafiquddin
J U D G M E N T
Heard Mr. Michi, learned counsel for the petitioners, Mr. Pertin, learned
Counsel for the respondents as well as the learned Government Advocate.
On 5th of March, 2001, the Department of Education, Govt. of Arunachal
Pradesh sent a requisition to the Arunachal Public Service Commission, Itanagar for
short "Commission" to send a panel of selected candidates for recruitment of lectures
against the vacancies described in the appendix to the letters. Pursuant to that,
Commission issued an advertisement and the petitioners along with the others
participated in the selection process. Vide Annexure-E, dated 24th of July, 2001,
Commission the subjects mentioned therein. The name of the petitioners did not
appear in the said selection.
The first submission of the petitioners is that the Commission was required to
conduct a selection process an forward the names of all the qualified candidates to the
government and it was for the Govt. to make appointments from the panel of selected
candidates. It is stated that the Commission cannot sit over the matter of selection by
recommending one name only and the names of all selected/qualified candidates
should have been recommended or referred to the Govt. In support of the submission,
the learned counsel has placed reliance on the decision of the Apex Court in the case
Mrs. Nilima Sungh Vs. the State of Hariyana AIR 1987 SC 169. On perusal of the
above decision, it is seen that the matter related to appointment of Subordinate Judge
under the relevant rules, relating to appointment of Subordinate Judges in Haryana.
The Apex Court directed that the Public Service Commission must communicate the
108
names of all the candidates, who obtained 55% or above marks and cannot withhold
some names on the ground that limited vacancies are available. The above decision
was given on the basis of the provision of Rules 8 & 10 of the relevant State rules,
which provided that in order to qualify, the candidates must secure aggregate of 55%
marks in the written as well as viva voce test. The recruitment rules of the
appointment of teachers under the UGC Scheme under the State of Arunchal Pradesh
does not provided for such cut off or qualification may Hence, the ratio of law laid
down in Ms. Milima Sungala (supra) is not applicable to the facts of the present case.
The learned counsel for the respondent on the other hand, submits that as per the
requisition received from the State Govt. and as per relevant rules, the Commission
conducted the competitive examination to select the most suitable candidate for
appointment to the post of lecturer. The learned counsel has placed reliance on the
decision of the Apex Court in the case of State of UP Vs. Rafiquddin, 1987 (Supp)
SCC 401. The Apex Court observed follows:-
" The Division Bench of the High Court observed that the Commission had no authority to fix any minimum marks for the viva voce test ad even if had such a power it could not prescribe the minimum marks without giving notice to the candidates. The Bench further observed that if the Commission had given notice to the candidates before the steps holding the competitive examination were taken to candidates may or may not have appeared at the examination. In our opinion the High Court committed serious error in applying the principles of nature justice to a competitive examination. There is a basic difference between an examination held by college or university or examining body to award degree to candidates appearing at the examination and a competitive examination. The examining body or the authority prescribed minimum pass marks. A person obtains the minimum marks as prescribe by the authority he is declared successful and placed in the respective grade according to the number of marks obtained by him.
In such a case it would be obligatory on the examining
authority to prescribe marks for passing the examination as well as for securing different grades well in advance. A person may obtain sufficiently high marks and yet the may not be selected on account of the limited number of post and availability of persons of higher quality. Having regard to the nature and characteristics a competitive examination it is not possible not necessary to give notice to the candidates about the minimum marks which the commission may determine for purposes of eliminating the unsuitable candidates. The rule of natural justice does not apply to a competitive examination".
The learned counsel for the petitioners has also submitted that the decision in
Ms. Nilima Sungla (supra) case was followed by this court in writ petition (Civil) No.
189 (AP) 2000. On perusal of the copy of the order passed by this Court, it is seen
that the learned Single Judge has categorically held that the "the decision in Ms.
109
Nilima Sungla may not be exactly applicable inn the present case. The terms
eligibility, qualified, 'selected' have different meanings and connotation of these words
are to be gathered in the context used in the relevant rules, statutory of otherwise ". In
the present case, requisition was very specific an at this stage, the learned counsel for
the respondents has submitted that the decision in the above case has been challenged
in writ Appeal, which is still pending and the impugned order has been stayed.
In the present case, requisition was very specific and the commission,
therefore, recommended the names of the candidates a asked for. There was no scope
to submit a list of the 'qualified candidates' as prayed for the petitioners.
It is further submitted that in the requisition letter (appendix), there was
mention regarding the anticipated vacancies in respect of three posts in the subjects of
Geography, Economics, and Hindi which are likely to occur in the year 2001-2002. It
is contended that Commission failed to consider these vacancies and did not
recommended names of candidates against these anticipated vacancies. The case of
the Commission, on the other hand is that, although, anticipated vacancies are shown
in the appendix, panel of selected candidates was sought to fill up the vacant post of
lectures only. In para 5 of their affidavit- in-opposition the commission.
"That in response to the statement mad in paragraph 3 of the petition, your answering deponent begs to state that though the vacancies likely to be occurred during the year 2001-2002 have been shown as a Geography-I,b. Economics-I and C. Hindi-1 in the requisition letter, but the department had never specifically sought for preparation of a separate panel list against the likely/anticipated vacancies. It is pertinent to mention that even if the panel was sought, he same cannot be used against anticipated vacancies. The penal so prepared has to be utilized for filling up of he vacant post. Hence, the commission recommended the penal list of only against the clearly/regular vacancies for appointment to the post of Lecturers".
There cannot be any selection in respect of anticipated vacancies, unless the
relevant Service Rules provided specifically for that. There is some reasoning for the
same as because, if the anticipatory vacancy for the year 2003-04 are filled-up by
selection in the year 2001 itself, the candidates or the persons who become eligible in
the year 2002-03 will be defected. There is nothing on record to show that the rules
provided for the selection of anticipatory future vacancy shall be made. In view of the
aforesaid, there is no merit in this writ petition and the writ petition is accordingly
dismissed. No costs.
***
110
W.P.(C) No.1001 (AP) OF 2001 D.D. 22.3.2002
The Hon'ble Mr. Justice B.B.DEB
Shri Maheswar Sarmah – Petitioner Vs. Arunachal Pradesh P.S.C. & Ors. – Respondents
Recruitment to the post Accounts Officer/Treasury Officer – Under the Rules Inspecting Auditor, Superintendent of Accounts, Sub-Treasury Officer, Administrative Officer and Superintendent of Secretariat/Heads of Department with 2 years services are eligible to apply for the post – The petitioner who is a Senior Research Assistant has contended that his post and the above posts carry the same scale and therefore he is eligible for the post – High Court has rejected the claim by dismissing the writ petition.
J U D G M E N T
In this petition, the petitioner challenged the legality of the circular issued by
the Arunachal Pradesh Public Service Commission (for short 'APPSC') bearing
No.PSC-R/ 14/2000, dtd 02.07.2001 for making selection for the posts of Accounts
Officer Treasury Officer. The petitioner has been holding the post of Senior Research
Assistant (SRA) being regularised with effect from 05.06.1997having identical pay
scale of Superintendent the Secretariat Administration, Government of Arunachal
Pradesh. In the advertisement, the applications are invited from the in-service
candidates holding the post of Inspecting, Auditor, Superintendent of Accounts, Sub-
Treasury Officer, Administrative Officer and Superintendent of Secretariat/Heads of
Department having two years service in the respective grades, but the post of Senior
Research Assistant has not been included therein, as a result, the petitioner was
precluded from making any application for the posts of Accounts Officer/Treasury
Officer. Hence the petitioner sought for writ of certiorari/ direction for owing him to
participate in the examination for the aforesaid posts.
At the time of issuing rule vide order dtd 05.10.200 the petitioner was allowed
to participate in the selection process consisting of both written examination and viva-
voce test to be conducted by the APPSC for recruitment to the post of Accounts
Officer/Treasury Officer and accordingly, the petitioner participated in the
examination, but the authority has not yet published the result.
The APPSC contested the case by filling counter affidavit contending, inter
alia, that as per the Recruitment Rules, for posts of Accounts Officer/Treasury Officer,
the incumbent the post of Senior Research Assistant is not eligible and as the
111
petitioner was not allowed to participate. However, pursue to the interim order passed
by this court, the petitioner was allowed and he participated in the examination.
The State Government also contested the case by fill counter affidavit.
According to the State respondent, since petitioner does not belong to the category of
the batch in the Recruitment Rules for the posts of Accounts Officer Treasury Officer,
his case cannot be considered. The post of Senior Research Assistant cannot be
equated with the post of Superintendent of the Secretariat Administration for the
purpose of ability criteria in respect of filling up the vacancies in posts of Account
Officer/ Treasury Officer though the pay of Senior Research Assistant and the
Superintendent of the secretariat Administration have been equalised.
The impugned circular bearing No. PSC-R/14/2000, dtd 08.06.2000 has been
issued by the APSC for filling up 8 posts of Accounts Officer/Treasury Officer and
application invited from the departmental candidates holding the post Inspecting
Auditor, Superintendent of Accounts, Sub-Treasury Administrative officer and
Superintendent of Secretariat of Departments having two years regular service in the
grade vide circular of even number dated 02.07.2001, the APSC having reiterated the
previous circular dtd 08.06.2000 prescribed the syllabus for holding examination.
The learned counsel for the petitioner submits that in view of equalisation of
pay and allowances of the incumbents holding the posts of Superintendent and Senior
Research Assistant, the petitioner earned the eligibility for the posts of Accounts
Officer/Treasury Officer. The learned counsel further submits that the nomenclature
of the post of Superintendent of Civil Secretariat has been changed and redesignated
as Section Officer.
The learned counsel for the APPSC referred the Recruitment Rules framed by
the Government in exercise of power conferred by the provision to Art. 309 of the
Constitution of India for the posts of Accounts Officer/Treasury Officer ad has
submitted that. Since the petitioner does not belong to the category mentioned therein
to become eligible for the posts of Accounts Officer/Treasury Officer, the APPSC
rightly issued the advertisement. The equation of the pay scale of the two posts,
namely, the Superintendent of Secretariat Administration and Senior Research
Assistant by administrative order cannot be equated with the eligibility criteria
prescribed by the Recruitment Rules being a delegated legation. The related
Recruitment Rules has been framed by the govt. in exercise of power under provision
to Art. 309 of the Constitution of India vide Notification No. DA/FIN/B24/76(PT.I)
112
dtd 5.1993 which is called "The Accounts Officer/Treasury Officer (Group-B)
Recruitment Rules, 1993". In the Schedule it appears 25% of the posts are to be filled
up by direct recruitment the competitive examination, syllabus of which remains
prescribed the Recruitment Rules itself, 37.5% of the posts are to be up by promotion
from amongst the Inspecting Auditor, Superintendent of Accounts and Sub-Treasury
officer with three years regular service in the respective grades and the remaining
37.5% of posts are to be filled up by in-service candidates through departmental
examination from amongst the Inspecting Auditor/Superintendent of Accounts/Sub-
Treasury Officer/Administrative Officer Superintendent of Secretariat an Heads of
Department with two years regular service. The post of Senior Research Assistant has
included therein and as such according to my considered opinion APPSC committed
no wrong in issuing the circular inviting. In issuing the impugned circular the APPSC
has followed eligibility criteria prescribed by the related Recruitment.
The petitioner has never challenged the Recruitment itself and so long the
Recruitment Rules for the posts of Officer/Treasury Officer subsists, the APPSC
cannot deviate from the rightly the APPSC refused to allow the petitioner in the
examination as a departmental candidates.
The learned counsel for the petitioner submits that since the petitioner was
allowed to participate in the examination he acquired a right to know the results of the
examination. On perusal of the interim order it appears that the court at the time of
passing the interim order was alive of the application of the interim order and as such
in the interim order is it remains mentioned that the petitioner would not acquire any
right by simply participating in the process of selection. The related part of the
interim order dtd 05.10.2001. is reproduced below:-
" It is made clear that the participation of the writ petitioner in the aforesaid selection process will not west him any legal right and such participation will be subject to outcomes of the writ petition".
As has been discussed above, it is found that since the petitioner does not hold
the prescribed post included in the recruitment rules for appointment to the post of
Accounts Officer/Treasury Officer, he cannot be allowed to participate in the
examination for the said posts. The Recruitment Rules having the force of law being a
legislative action of the Governor cannot be ignored by the APPSC at the time of
issuing the advertisement. Equation of pay scale of the two posts by administrative
order cannot be treated to be the equation of status of two posts. Eligibility criteria for
participating in a competitive examination and/or professional avenues to the higher
posts are to be judged in accordance with the Recruitment Rules prescribed. Any
113
administrative order making equation of pay scale of two or more posts cannot alter
the eligibility criteria prescribed by the Recruitment Rules.
In that view of the matter, the petitioner is looking of eligibility as prescribed
under the Recruitment Rules for the posts of Accounts Officer/Treasury Officer and as
such the writ petition being devoid of merit liable to be and is hereby dismissed. No
order as to cost.
The result of the eligible candidates, who participated in the examination
(except the petitioner) may be declared by the APPSC at its convenience.
***
114
W.P.C.No.39 (AP)/2002 D.D.8.5.2002
The Hon'ble Mr. Justice A.H.Saikia
Minki Boje & Ors. – Petitioners Vs. The Chairman, Arunachal Pradesh P.S.C. & Anr. – Respondents
Recruitment to the posts of Grade A & B Services of Arunachal Pradesh
Government – Applications of the petitioners were rejected for failure to affix their
photographs – By an interim order petitioners were allowed to participate in the
examination.
High Court while dismissing the Writ petition as having become infructuous
has observed that the interim order by which the petitioners were allowed to sit for the
examination shall not be treated as a precedent in future cases.
J U D G E M E N T
Let a Rule issue calling upon the respondents to show cause as to why a writ
should not be issued as prayed for; or why such further or other order(s) should not be
passed as to this Court may see fit and proper.
The Rule is made returnable forthwith.
Heard Mr. Hussain, learned counsel for the petitioners and also heard
Mr. T. Portin, learned counsel for the respondents Arunchal Pradesh Public Service
Commission.
The only grievance of the writ petitioners in this writ petition is that they were
not allowed to participate in the combined examination for the posts of Grade A & B
Services of Govt. of Arunachal Pradesh conducted by the Arunachal Pradesh Public
Service Commission (for short the commission) to be held on 03.02.2002.
This Court by order dated 29.01.2002, for granting interim relief, after hearing
the parties was prima-facie satisfied that the rejection of the candidature of the
petitioners particularly the petitioners 1,2,3,4,5,7,8,11,12,13,14,15,16,17,18,20 and 22
on the ground of non submission of photographs was purely on flimsy ground and
directed the Commission, in the interim, to allow those petitioners to sit in the
examination in question.
115
It is submitted by Mr. Pertin that as per direction of this Court dated
29.01.2002 noted above, the Commission allowed those petitioners above named to
appear in the examination. At this state Mr. Hussain has submitted that apart from
those petitioners, all other candidates similarly situated had also been allowed to
appear in the examination by the Commission.
I have carefully perused the materials available on record and also the
pleadings of the parties as well as the interim order dated 29.01.2002 passed by this
Court. On perusal of the interim order and subsequent steps taken by the Commission
pursuant to the interim order, as submitted by the learned counsel for the part parties, I
am of the view that the petitioners have already got relief as prayed for in he writ
petition and since the petitioner had already taken preliminary test, the matter has
become infectious in view of the interim order dated 29.01.2002. Consequently, this
writ petition is closed in fructuous.
Before parting writ the records, it is made clear that the Commission may
proceed with the selection process and announce the result accordingly without
making any discrimination to the present writ petitioners for approaching this Court.
It is needless to say that the interim order by which the petitioners were allowed to sit
in the examination shall not be treated as a precedent in future cases.
This disposes of the writ petition.
***
116
W.P.(C) No.949 of 2001
D.D. 31.5.2002 The Hon'ble Mr. Justice N.Surjamani Singh
Dr.Vidya Rani – Petitioner
Vs.
The State of Arunachal Pradesh & Ors. – Respondents
Recruitment to the post of Hindi Lecturer – Petitioner was the lone candidate – PSC without following procedure prescribed under the Rules evolved its own procedure and found the petitioner not suitable and accordingly not recommended. High Court allowed the writ petition and directed to initiate fresh recruitment and to permit the petitioner to participate after relaxing the age if necessary.
Cases referred:
1. (1985)4 SCC 417 Ashok Kumar Yadav Vs.State of Haryana 2. 1986 SC (L&S) 88 1985 Suppl. SCR 657 3. (1990) 3 SCC 157 N.T.Bevin Katti & Ors. –vs- Karnataka P.S.C. & Ors. 4. (1991) 1 SCC 686 Vikram Singh and Anr. –vs- Subordinate Service Selection Board, Haryana & Ors.
J U D G M E N T
In this writ petition, the petitioner, Dr Vidya Rani has made a prayer for a
direction to the respondents to appoint her in the post of Lecturer in Hindi under the
respondent department considering her higher educational qualification a also her
appearance before the Selection Board and that as she was the 1 (one) candidate who
appeared in the test and interview. It is also contended inter alia, that in terms of the
related advertisement dated 23.03.2001, the petitioner applied for the post of Lecturer
in Hindi and initially, she could not receive any call letter though she applied for it any
lastly she had been allowed to appear before the interview Board on 17.07.2001 in
terms of the office letter dated 28.06.2001 issued by the Arunachal Public Service
Commission (for short "APPSC") as in Annexure-7 to the writ petition and she was
tested by the Selection Board. However, she was not selected on the ground that in
Selection Board had assessed the suitability, capability, quality and efficiency of the
petitioner and her performance was for below the requisite standard and that being the
position, thus she was the one candidate, the Selection Board assessed her below
average. This is the contention of the respondents made in their counter affidavit. The
statements and plea taken so far by the respondents is supported by Mr. T. Pertin,
learned counsel for the respondents.
At the hearing Ms N. Saikia, the learned counsel for the petitioner, supporting
the case of the writ petitioner relived upon a decision of the Apex Court reported in
117
2000(8) SCC 633 and contended that marks for the related test were assigned
inasmuch as, for the maximum marks of 25 have been sub-divided into the following
marks:
3 Marks for HS/10the Class
3 Marks for PU/10+2.
3 Marks for Degree.
3 Marks for PG
3 Marks for additional qualification
4 Marks for M Phil.
6 Marks for Ph D.
Apart from that viva-voce and knowledge for subjects were assigned for a
maximum marks of 50. It was further sub-divided (50+5+5) which according to MS.
Saikia, it is arbitrary and not permissible under law. She further relied upon the
decision of the Apex Court as well as this Court reported in 1991(1) SCC 686:1990
(3)SCC 157:1919 (3) SCC 47 and 1994 (2) CLR 293.
Now this Court is to see and examine as to whether the respondent authority as
well as Selection Board had violated the procedural standard in the related Selection
process or not and whether the petitioner has enforceable legal right in the foots and
circumstances of the case or not.
Upon hearing the learned counsel for the parties and also on perusal of the
available materials on record, I am of the view that the petitioner has enforceable legal
right in instant case and apart from that the respondent authority had utterly failed to
follow the procedural standard in the related proceedings for Selection of candidates
for the post of Lecturer in Hindi thus resulting into arbitrariness for the following
reasons. For better appreciation of the master, Annexure-R1 appended to the counter
affidavit of the respondents is relevant which is reproduced herein below:
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Educational Qualification Distinction 31st Div-2 2nd
Div-1
Extra
Curricular
activities
Teaching
Experience/
Research
work l
Viva -voce Total
100
Marks
Maximum Marks –25 Maxi.
Marks – 5
Maxi.
Marks-10
Maximum Marks-60
Sub-divided Marks Sub-divided marks
HS
10th
AISS
CE
PU
10+2
DegreePG
Qly
Addl
Qly
M.
Phil
Ph.
D.
New
ledge of
Subject
-50
Teaching
aptitude
Teaching
teach
Knowledge
about
Arunachal
Predesh
I N O Roll
No.
Name
3 3 3 3 3 4 6
1 000
115
Dr.Vidya
Rani
02 02 01 02 02 - 02 02 - 05 01 01
21
(Below
average
2
3
4
5
Sd/- Dr B.N. Rayachoudhury
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ii) A bare perusal of the results of the selection process done
by the authorities concerned as soon in the Annexure-R1
document mentioned above it is highly astound to see the
proceeding which according to me, the authority/Selection
Board did not follow the procedural standard inasmuch as it
appears to me that there are three or four members in the
selection process and the gave their marks an numbers or
assessment with the same marking and number 10, 02, 02,
01, 02, 02, 02, 02, 05, 01 and 01 totaling to 21 and assessed
the petitioner below average. In my considered view this
method is not correct which is a failure machine with the
same markings by three minds of three members of the
Selection Board. I am also of the view these assessments
made by the three members of the Selection Board are based
on "non-common sense" and accordingly it should be turned
down and accordingly, it is quashed. Apart from quoting
these assessments, I am constrained to make the follow
orders and directions.
The Chief Secretary to the Government of Arunachal Pradesh shall look into
the matter and make necessary enquiry as to enable him to do something against those
members of the Selection Board in accordance with law who had defied not on the
related procedural norms but also this law as laid down the Apex Court as well as by
this court. In this regard a residence can be made to a decision of the Apex Court
rendered in Ashok Kumar Yadav Vs. State of Haryana, (1985) 4 SCC 04.07.1986
(L&S)88:1985 Supp.SCR 657 and related decision of the Apex Court rendered in
Vikram Singh and another Vs. Subordinate Service Selection Board, Haryana and
other (1991)I SCC 686.
Where selection process initiated by issuing advertisement inviting
applications. Such selection normally should be regulated by the rules or orders then
prevailing at the regular time and it should be done in accordance with the related
advertisement and that the persons applying for the appointment if otherwise qualified
in accordance with the existing rules or orders or in terms of advertisement inviting
applications a clear vested right to be considered for selection in accordance with rules
or orders created by them. This is the law of the land. In this regard a reference can
be made to a decision of the Apex Court in NT Devin Katti and other Vs. Karnataka
Public Service Commission others, (1990) 3 SCC 157.
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This Court need not go more into depth as suffice is made with the above
observations for quashing the entire proceedings of the Selection Board in the matter
of selection of Lecturer in Hindi. In view of the discussions and observation made
above, I quash the entire proceeding of the Selection Board. It appears to me that the
present writ petitioner possesses all requisite and essential qualifications and higher
qualification and she deserves for appointment in the said post of Lecturer in Hindi.
However, this Court is not giving any direction in that regard for appointment of the
writ petitioner but it is made clear that the respondents authority shall make a fresh
advertisement for selection and appointment for the said post of Lecturer in Hindi in
the respondent department within a period appointment of Lecturer in Hindi will be
made within another period of one month from the date of the fresh advertisement and
it is also further made clear that the writ petitioner shall be allowed to apply for the
said post and, her case shall be considered by the Selection Board and if the writ
petitioner is barred by age it should be relaxed. I made this observation keeping in
view the facts ad circumstances of the case and, it also note-worthy to mention that in
any case, these three members of the Selection Board should not be allowed to
conduct the selection process for such selection and appointment in the said post of
Lecturer in Hindi under the respondent department.
For the reasons, observations and directions made above, this writ petition is
disposed of. But there is no order as to costs.
***
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Writ Petition (C) No.1056(AP)/2001 D.D. 13.6.2002
The Hon'ble Mr. Justice I.A.Ansari Dr.Abu Taba & Ors. – Petitioners Vs. State of Arunachal Pradesh & Ors. – Respondents Recruitment to the post of Medical Officer (Allopathy) and Junior Dental Surgeons was started by P.S.C. by issuing advertisement dated 8.2.2001 under Arunachal Pradesh Health Services Rules 1990. PSC sent the list of selected candidates on 3.12.2001. Before that the Rules were amended and came into force from 1.8.2001. Petitioners who were unsuccessful in the recruitment challenged the selection on the grounds, firstly, the Rules under which the selection was made were already replaced by Amended Rules and secondly, some of the selected candidates who are arrayed as respondents are closely related to the Chairman and Members of the Commission. Held – As the recruitment was started under the unamended Rules, the recruitment is governed by the said Rules. However as some of the selected candidates are related to the Chairman and Members of the Commission, the High Court has upheld the allegation of bias and quashed the whole selection process. Cases referred: 1. AIR 1970 SC 150 AK Kraipak and others Vs. Union of India and Others 2. AIR 1986 SC 1043 Om Prakash Shukla –vs- Akhilesh Kumar Shukla 3. AIR 1987 SC 454 Ashok Kumar Yadav & Ors. Vs. State of Haryana and Ors. 4.1990 (i) GLT 412 Nagaland AssemblySecretariat Staff Association –vs- State of Nagaland and others 5.1995 (3) SCC 486 Madanlal & Others –vs- State of Jammu & Kashmir 6. AIR 2001 SC 152 Praveen Singh –vs- State of Punjab & Others
JUDGMENT 1. Challenging not only the legality but also fairness and transparency of the
selection process for the recruitment of Medical Officer (Allopathy) and Junior Dental
Surgeons adopted by Arunachal Pradesh Public Service Commission (hereinafter
referred to as "The Commission"), the petitioners have approached this Court with the
present application made under Article 226/227 of the Constitution of India seeking
issuance of appropriate write(s) on the Respondents.
2. In a nutshell petitioners' case runs thus: By and advertisement published on
08-08-2001, in Eohe of Arunachal Pradesh an English Daily, in the State of Arunachal
Pradesh, the Commission invited applications for filling up of 20 (twenty) posts of
Medical officer (Allopathy) and 4 (four) posts of Dental Surgeon under Arunachal
Pradesh Health and Family Department (here-in-after called " The said Department").
The advertisement mentioned that selection would be made through viva-voce
test/interview. The petitioners, who, too, had applied for the said posts, were called for
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the said viva-voce test/interview conducted by the Commission. The respondents No.6
to 28 were, eventually, declared successful. The Writ petitioners were amongst
unsuccessful candidates. The said selection was made on the basis of Arunachal
Pradesh Health Services Rules, 1990(here-in-after) called "Service Rules of 1990".
However, at the time of making the said selection, the Service Rules of 1990 already
stood superseded by a new set of Rules known as Arunachal Pradesh Health Service
Rules 2000 (here-in-after referred to as "Services Rules of 2000"). The Rules of 2000
clearly lay down that Selection of the Medical Officer shall be made by direct
recruitment on the basis of written examination to be conducted by the Commission
followed by interview. Under these Rules as far as recruitment for the post of Junior
Dental Surgeon is concerned, the same shall be made either by written examination, to
be conducted by the Commission, which is to be followed by interview or on the basis
of interview only. In the present case, the selection was made on the basis of viva-
voce/interview, which gave scope for manipulation to the persons constituting the
Commission. Selection having, thus been conducted contrary to the provisions of
Services Rules 2000, entire Selection Process is illegal and ineffective, because it
allowed the Commission to adopt a method of pick and choose of their near and dear
ones. In fact, Dr.Tana Jeshi Tara and Dr. Tana Natung namely, Respondents No.14
and 8 respectively are closely related to Chairman of the Commission and
Respondents No.6, 7, 9 to 13 and 15 to 28 are closely related by Member of the
Commission and of other political high ups and they have been found placed in the
selected list not because of their merit and experience, but by manipulations of the
procedure of the interview /viva-voce in gross violation of the rules. The whole
selection suffers from gross partiality, discrimination and favoritism. The selections so
made, thus, need to be quashed.
3. Repelling the above allegations, respondent Nos.2 and 3, namely, the
Commission, represented by its Chairman and the Secretary of the Commission have
filled their affidavits-in-opposition, their case being, briefly stated, thus: As per
requisition received by the Commission from the Government vide letter No.MEST-
9/194 Dated:02-07-2001, and subsequent letter, dated:01-08-2001 the said department
had forwarded the service Rules of 1990 (Notified vide No.MEST-77/150, dated 12-
01-1990) for recruitment to the posts of Medical officer (Allopathy), Dental Surgeons
and Junior specialist. Accordingly, the Commission, as per the laid down norms,
conditions and terms of the said rules, issued advertisement for filling up the posts.
Service Rules of 2000 had not been requisition. The Commission was not aware that
the recruitment rules so, received had already been repealed and, hence, the interview
was conducted as per the Service Rules of 1990. The total marks kept for the interview
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was 100. In the entire process of recruitment, the Department had, at not stage,
highlighted the existence of the new rules nor forwarded a copy of the same to the
Commission. Name of the candidates had raised the issue and the petitioners are
raising the issue after the results have been declared, because the results are not
palatable to them. The Commission had conducted the interview on the basis of the
Service Rules of 1990, which allows selection on the basis of viva-voce only. The
Commission received altogether 94 (ninety four) applications and out of the same, 12
application were rejected and the rest 82 candidates were called for the interview. The
Commission has selected the candidates as per merit and not be manipulation of the
procedure of the interview as allotted.
4. As far as State Respondents, No.1, 4 and 5 are concerned, their case, in brief, is
that the Department concerned submitted a representation to the Commission for
selection of candidates to fill up the posts of M.O.(Allopathy)/Dental Surgeon on 02-
07-2001 by Government Letter No.MES-97/94/1001, dated 02-07-2001 as per existing
service rule of APHS-1990. Subsequently, another requisition was submitted to the
Commission vide Letter No.MEST-97/94/1067, date Itanagar 1st August 2001. After
submission of requisition on the Commission on 1st August, 2001, the relevant
Services Rules were amended and the said amended Service Rules came into force
with effect from 3rd August, 2001, from the date of its publication in the official
Gazette, but the syllabus for the written examination was yet to be finalised. The
Government of Arunachal Pradesh received the list of selected candidates, on 03-12-
2001, from the Commission vide letter No.PSC/R/27/2000, dated:28-11-2001.
Because of pendency of this Writ Petition, the Government could not issue
appointment orders to the selected candidates, whose services are urgent needed,
because there is shortage of doctors in the Medical Department for deputing them to
serve at primary Medical Health Centers in various districts specially in the remote
areas. The Commission has rightly acted upon the requisition sent by the Department
for recruitment of 41 numbers of Group 'A' post under the Department as per Service
Rules of 1990. Since the new Service Rules came into effect after requisition was
already submitted to the Commission by the Department, the Selection are held. The
unsuccessful candidates, who had already participated, cannot claim any relief in this
Writ Petition, because they have no discus standing to challenge the recruitment.
5. By their affidavit, respondents No.6 to 28 who are the successful candidates,
have also contested this case contending, inter-alia, that the writ petitioners having
participated in the process and having been rejected due to their poor performance
cannot, now, challenge the legality of the selection process or its fairness. As the
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selection process had started before coming into force of Service Rules of 2000, the
selection made on the basis of the Service Rules of 1990 is a selection.
6. The Respondents No.12, 13, 25 and 26, who had applied for the post of Junior
Dental Surgeon, have contested this case on the ground, inter-alia, that even under the
Service Rules of 2000, recruitment for the post of Junior Dental Surgeon can be made
either on the basis of written examination to be followed by interview or on the basis
of interview alone and, hence written examination for recruitment of Junior Dental
Surgeon was not mandatory. The selection does not suffer from any illegality or
infinity. The writ Petitioners, being unsuccessful candidates, cannot challenge the
legality or fairness of the selection process or of the selection made.
7. I have perused the relevant records. I have heard Mr.T.Son, learned counsel for
the petitioners, Mr. R.H.Naban learned Additional Senior Government Advocate, who
was appeared on behalf of respondents No.1, 4, & 5 Mr. M. Pertin learned standing
counsel for the Commission, who has appeared on behalf of Respondent No.2 & 3 and
Mr.T.Michi, learned counsel, who has appeared on behalf of the remaining
respondents.
8. Shorn off lengthy and immaterial details and legal rhetories, what emerges
from the allegations and counter allegations levelled by the parties against each other
is that the petitioners have challenged the entire selections process on two ground,
namely, (a) section was not held in accordance with the Service Rules of 2000, which
were in force at the relevant time of selection and (b) successful candidates, namely,
respondents No.6 to 28 were close relatives of the Chairman/Members of the
Commission and other high up and, hence, the selection process suffers from not only
illegality but also fairness and bias inasmuch as the selection made on the basis of
interview alone was not only in contravention of the relevant rules of 2000, but that it
also provided the Commission with vast scope for manipulation and nepotism.
9. In support of his contention that the recruitment ought of have been made
under the Service Rules of 2000 and the same having not been adhered to by the
Commission entire process of selection is wholly illegal, Mr, T.Son, had placed
reliance on Nagaland Assembly Secretariat Staff Association –Vs-State of Nagaland
and others 1990 (i) GLT 412.
10. It is also contended by Mr. T. Son that selection on the basis of the interview
alone leaves vast scope for manipulation of results and selection made on the basis of
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interview alone is highly improper and should not be allowed. In support of this
submission, Mr. T.Son has placed reliance on Praveen Singh-Vs-State of Punjab &
Others, AIR 2001 SC 152
11. Controverting the above submissions made on behalf of the petitioners, Mr.
R.H. Nabam, learned Addl. Senior Govt. Advocate, has pointed out that from the
undisputed materials on record, as reflected from the affidavit of the Commission and
also of the Government, it clearly transpires that the requisition was sent by concerned
department to the Commission for making selection for the purpose of filling up of 20
(twenty) posts of Medical Officer (Allopathy)/Dental Surgeons, on 02-07-2001, when
the Service Rules of 1990 were still in force. Even when the requisition was repeated
by another letter of the department concerned, the date issuance of the letter was 01-
08-2001, whereas now Service Rules of 2000 came into force on its publication in the
Gazettee with effect from 03-08-2001. Thus, the process of selection already stood
initiated before the new Service Rules of 2000 came into force. So contends Mr.
Nabam. It is also pointed out by Mr. Nabam that since there are shortage of doctors in
the Medical Department to serve at Public Health Center in remote areas and
preparation of syllabus for written examination (as envisaged in the new Rules of
2000) was yet to be finalised, the recruitment has to be held under the service Rules of
1990 and the recruitments so made are valid recruitments.
12. It is also submitted by Mr. Nabam that the petitioners have no locus-standi to
challenge the legality of the selection process on the ground that the same was not in
conformity with the Service Rules or 2000, because they have become unsuccessful,
they cannot challenge the validity of the recruitment process on the ground of its
having been held under the service Rules, of 1990 which had ceased to be in force on
the date of selection. In support of this contention, Mr, Nabam has relied on Mandalal
& Others-Vs-State of Jammu & Kashmir 1995 (3) SCC 486
13. Let me, first, deal with the question as to whether the petitioners have locus-
standi to challenge the selection process on the ground that it was conducted under the
Service Rules of 1990, which had ceased to be in existence on the dated of making of
the selection?
14. Without entering into the merit of the submission, made on behalf of the State,
tat since the recruitment process had started before the Service Rules of 2000 came
into force, the selection held under the old Rules of 1990 is not illegal, suffice it to
mention here that consistent view of law is that the candidate, who has fully
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participated in a selection process and failed to qualify the same, cannot turn around
and challenge the legality of the selection process on the ground that it was not held as
per relevant rules. Reference made by Mr. R.H.Nabam, in this regard, to the case of
Madanlal-Vs-State of Jammu & Kashmir (Supra) is not misplaced inasmuch as the
Apex Court has, on the above crucial subject, succinctly laid down the position of law
as follows:
" Before dealing with this contention, we must keep in view the silent fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners too a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerge successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate take a calculated chance and appears at the interview, then, only because the result of the interview is not palpable him, he can not turn round and subsequently centend that the process of interview was unfair of the selection Committee was not properly constituted. In the case of Om Prakash Shukla Vs Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination file a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner."
(Emphasis is added by me) 14.A. I am also guided to adopt the above view from the law laid down in Om
Prakash Shukla-Vs-Akshilesh Kumar Shukla (AIR-1986 1043) wherein it has been
laid down as follows:
" Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the district of Kanpur aslo. They were not responsible for the conduct of the examination."
(Emphasis is added by me) 15. Because of what have been discussed above, it becomes clear that petitioners
are not, now, entitled to challenge the validity of the selection of the process on the
ground that the same was not held as per law in force on the date of selection. Viewed
from this angle, reference made by Mr.T.Sen to the case of Nagaland Secretariat Staff
Association (Supra) and Praveen Singh (Supra) are wholly misplaced.
127
16. Now, coming to the second ground on which the petitioners have impugned the
selection process, merely, that the selection process was unfair and manipulated for
extraneous consideration, it is worth noticing that out of altogether 94 applications
received by the Commission, 12 applications were rejected and the rest 82 candidates
were called for the interview.
17. I have very clearly scrutinised all the affidavits filed by contesting respondents,
but I do not fid that any of the respondents have specifically denied or disputed the
allegations made by the petitioners as regards the relationship between the Private
respondents and Chairman/Members of the Commission. To a pointed query made, in
this regard, by this Court, Mr. Pertin as well as Nishi has, though reluctantly, conceded
that there is no specific dental on record responsible for, and interverently associated
with, the entire selection process.
18. Situated thus, one has no escape from the conclusion that respondents Nos. 8
and 14 are closely related to the Chairman of the Commission and Respondents
Nos.6,9,10,11,16,17,18,19,20,22,27 and 28 are closely related to the Members of the
Commission . Since the averments in the affidavit are not controverted, this Court has
to proceed on the basis that averments stand admitted. (Smti. Naseen –Vs- State of Up
& others may be referred to).
19. In view of the fact that two of the selected candidates are, admittedly, closely
related to the Chairman of the Commission and as many as 12 number of candidates
are closely related to the members of the Commission, the likelihood of bias adversely
affecting the process of selections cannot be boldly and confidently ruled out. When a
selection made is brought for scrutiny before a Court of law on the ground of bias and
unfairness, the selection has to withstand the test of fairness and impartiality. If
reasonable possibility of bias or nepotism exists, such a selection procedure cannot, by
any means, be allowed to stand good on record. When a member of a Selection
Committee has an interest of his own, then, even if such a member welfare he may be
interested in yet the fact remains that while judge in merit of the others, whose interest
obviously clash with the interest of the candidate concerned, possibility cannot be
ruled out of bias affecting the judgment/assessment of the selector, even while
assessing the merit of the others. As indicated in AK Karipak and others Vs. Union of
India and other (AIR 1970 SC 150), the real question is not whether such a person was
bias, because it is difficult to prove the state of mind of a person. When the Court has
to judge as to whether there is reasonable ground for believing that he was likely to
128
have been bias, this bias can be inferred by taking into consideration human
probabilities and ordinary course of human conduct.
20 Since the present selection was made by State Public Service Commission, the
case is squarely covered by the landmark judgment of the Apex Court in Ashok
Kumar Yadav & Ors. Vs. State of Haryana and Ors. (AIR 1987 SC 454). It has been
clearly laid down in this case that when a close relative of a member of Public Service
Commission appears for interview, such member must be dropped from participation
in the interview, of the candidate and must not take part in any discussion with regard
to the merits of the candidate and even marks/credits given to that candidate should
not be disclosed to him.
21. In the case at hand, from the available materials on record, I do not find even
semblance of assertion on the part of the contesting respondents that when the
respondent Nos. 8 & 14 were interviewed, Chairman of the Commission, who was
admittedly a relative of the two candidates, had withdrawn from participation in the
interview and/or that the marks obtained by respondent Nos. 8 & 14 had not been not
disclosed to the Chairman. Similarly, these is not even an iota of assertions any where
in the record that the numbers of the commission had withdrawn, whenever their
relative had partnerships at in the interview and/or that the marks obtained by such
candidates were kept withheld from the member, whose relative was interviewed.
22. Situated thus, this Court is constrained to hold that reasonable personality of
likelihood of bias creeping in and adversely affecting the entire selection process, hold
for recruitment to the post of Medical Officer (Allopathy) and in Dental Surgeon,
cannot be confidently ruled out. Selections made on the basis of such selection
process cannot, therefore, allowed to stand good on record.
23. On behalf of the respondents Nos. 12,13,25 and 26 who are applicants for the
post of Junior Dental Surgeon, it has been submitted that since even the Service Rules
of 2000 provide making of recruitment on the basis of the written examination to be
followed by interview or on the basis of interview alone, the Commission, in effect,
acted, within the ambit of Service Rules of 2000, by choosing to make selection on the
basis of interview alone. In this regard, suffice it mention that I have already held that
since the petitioners have participated in the selection process, they cannot, now, turn
around and challenge legality of the selection process, as held above, is marred by
strong possibility bias, the selection made in the basis of such a process cannot be
allowed to stand good on record.
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24. I may pause here to point out that in Pradhan Singh (Supra), the Apex Court
had disapproved the choice of making recruitments on the basis of interview alone,
because the scope for manipulation giving the tactics of manipulations façade of
interview is not impossible. I am guided to adopt this view from the law laid down in
Praveen Singh (Supra) in the following words:-
“while it is true that the administrative or quasi Judicial authority clothed with the power of selection and appointment ought to be left unfettered in adaptation of procedural aspect but that does not however mean and imply that the same would be made available to an employer at the cost of fair play, good conscience and equity. This Court in the case of J.P. Kulshreshtha Vs. Chanceller, Allahabad University, AIR 1980 SC 2141:(1980 Lab IC 692:1980 All LJ 571) did recognize the undetectable manipulation of results being achieved by remote control tactics and masked as viva voce test resulting (in) the sabotaging of the purity of proceedings. This Court held “interviews as such are not had but polluting it to attain all estimate ends bad”.
What does Kulshreshtha’s case (Supra) depict? Does say that
interview should be only method of assessment of merits of the candidates? The answer obviously cannot the affirmative. The vice of manipulation, we are afraid cannot be ruled out. Though interview undoubtedly a sign cant factor in the matter of appointments. It plays a strategic role but it also allows creeping in of a lack rendering the appointments illegitimate. Obviously, it is an important factor but out not to be the sole guiding factor since reliance thereon only may lead to a "sabetal purity of the proceedings". (Emphasis is added by me)
25. It needs to be borne in mind that when the Service Rules 2000 provides the
Commission with option of making recruitment of Dental Surgeon on the basis of
either written examination, to followed by interview, or on the basis of interview
alone, the Commission has to satisfy the Court, if the fairness of the selection is
challenged, as to why it chose to make recruitment on the basis interview only and did
not resort to holding of written examination be followed by viva voce test/interview.
The affidavit filed by the Commission is, as already indicated above, completely silent
in this regard.
26. Coupled with the above it is immense importance to note to though it is true
that the requisition for making recruitment was a sent by the said department to the
Commission initially on 02.07.2001 and then, repeated on 01.08.2001, yet the fact
remains that the Service Rules of 2000 came into force barely two days thereafter i.e
03.08.2001. It is difficult to believe that the Department concerned on publication of
Gazette notification on 03.08.2001 did not come know that the new recruitment rules
had already come into force and selection, if any, should be made on the basis of new
130
recruitment rules. In fact, the State respondents do not deny their knowledge of the
changes that had taken place. This becomes crystal clear from the fact that in the
affidavit, the state respondents have contended to the effect that since syllabus for
written examination was yet to be finalised and posting of doctors at primary Health
Centers was necessary the selection was made on the basis of the Rules of 1990.
However, materials has been placed before this court to show that any serious study
was done either by the Department concerned or by the Commission to ascertain if in
view of the change in the relevant recruitment written examination should be held
before calling candidates (mean post of Dental Surgeons) for viva voce or interview.
Far from this, the Commission had expressed its complete ignorance by a it did not
know that the recruitment Rules stood change syllabus for any written examination, to
be conducted by a Public Service Commission, is to be prepared, it has to be really
prepared by the Commission, because it is the Commission, which knows what it need
to test in a candidates to determine his/her suitability for the post for the recruitment
has to take place.
27. In the face of the fact that the Commission nowhere claims that it made by any
effort to finalise the syllabus for written examination, one can not readily believe the
assertions of the State respondents that as finalisation of syllabus would have taken
time, recruitment was held under the Service Rules of 1990. I am not questioning here
the legality o making of recruitment on the basis of Service Rules of 1990 was aimed
at making recruitment has till of some persons already chosen for the post advertised.
Viewed from this angle, not holding of written examination and making of selection
based entirely on interview, fairness of which is vigorously shaken, one has no option,
but to held that the selection made smashes of bias and favoritisms.
28. In short, attempting to make selection on the basis of interview alone coupled
with the fact that the entire selection process is found to smack of bias, the recruitment
made, with the help of such process, cannot but be interfered with Court in exercise of
power under Art. 227 of the constitution of India.
29. In the result, an for the reasons discussed above, this writ petition secedes. The
entire selection process a well as selection of he private respondents, namely,
respondent Nos. 6 to 28 and the appointment, if any, already made, in consequence of
such selection, shall stand set aside and quashed as a whole.
30. No order as to costs.
***
131
ASSAM PUBLIC SERVICE COMMISSION
132
GAUHATI HIGH COURT W.P. No.3945/1999 & connected cases
D.D.10.1.2001
The Hon'ble Mr. Justice D.Biswas
Dr.Dilip Kumar Sarkar & Ors. - Petitioners Vs. State of Assam & Ors. - Respondents Selection to the post of Principals of 3 Medical Colleges of Assam - Advertisement No.6/99 dated 5.6.99 prescribed the eligibility criteria including age limit – There is no Clause in the advertisement for relaxation of age or experience prescribed – P.S.C. recommended the names of 6 candidates in the order of merit by relaxing the eligibility criteria with regard to age and experience in respect of 2 candidates Sl.Nos.2 and 3 in the select list for 3 posts the High Court has quashed the select list with a direction to initiate the selection process afresh. Cases referred: 1.(1998)7 SCC 469 Laxmibai Kshetriya, Gramin Bank Vs. Chand Behari Kapoor 2. AIR 2000 SC 1097 State of U.P. Vs. Ram Swarup Saroj
J U D G M E N T
1. By this judgment writ petition (C) Nos. 3945/99,5095/99,2294/2000 and 2-
3/2000 are being disposed of as they relate to the same subject matter.
2. Writ petition (C) No. 3945/99 has been filed by Dr. Dilip Kumar Sarkar
praying for issue of appropriate directions for recalling the advertisement No. 6/99 dtd
05.06.99 issued for selection of the principals of three Medical Colleges of Assam and
for further direction for holding interview on the basis of advertisement No. 7/97
making provisions for reservation for Scheduled Caste candidates. His grievance is
that the ad-hoc appointment should no longer continue and regular appointment be
made complying with the reservation policy of the Government. The State in their
affidavit-in-opposition justified the impugned advertisement on the ground that it had
to be issued to comply with the provisions of the Assam Scheduled Caste and
Scheduled Tribes (Reservation of vacancies for services and posts) Act, 1978.
Respondent No.4 Dr. K.N. Barua, submitted in affidavit controverting the contentions
raised in the petition and further submitted that reservation for appointment in excess
of 50% of the total posts or vacancies is impermissible under the provisions of the Act.
3. Writ petition (c) No. 5095/99 has been filed by Dr. Munindra Mohan Deka for
issue of a writ of Mandamus restraining the respondents from appointing any person
from the recommendation dtd 23.09.99 (Annexure-XIII) made by the commission and
also for setting aside the name. The propriety and the validity of the select list has
133
been challenged on the ground that the candidates recommended by the Commission
suffers from various deficiencies in respect of eligibility criteria namely, experience,
age etc. According to Dr. Deka, the candidates without fulfilling the requisite criteria
were considered and selected in deviation from the stipulations incorporated in the
advertisement.
4. Writ petition (C) No. 2294/2000 has been filed by Dr. S.N.R. Patgiri praying
for cancellation of the ad-hoc appointment made to the post of Principal-cum-Chief
Superintendent both at Guwahati Medial College and Assam Medical College,
Dibrugarh. Further, direction has also been sought extending the validity of the select
list dtd 23.09.99 (Annexure-6).
5. Dr. K.N. Barva, preferred Writ petition (C) No. 2323/2000 for issue of a writ
of Mandamus for discontinuing the ad-hoc appointment of Respondent Nos. 4 and 5 as
Incharge Principal and for appointing him as the Principal of Gauhati Medical College
in pursuance of his selection and position in the select list.
6. It would appear from the pleadings above that the State Authority has been
making ad-hoc arrangement to run the three Medical Colleges in the state without
appointment of any regular Principal although the Commission forwarded its
recommendation to the State long before. The State for reasons best known to them
did not go for any appointment from the said list even though interim order has been
passed directing the State to appoint regular Principal.
7. Mr. G. Uzir, learned counsel arguing for the writ petitioner (W.P(C) No.
5095/99) submitted that the select list dtd 23.09.99 is tainted because of selection of
ineligible candidates by condonation of age dehor the rules. According to Mr. Uzir,
consideration of ineligible candidates and incorporation of their names in the select list
has vitiated the entire selection process and therefore, it is a case fit for a direction to
the State to go for selection afresh. Shri Uzir further pointed out that age of over-aged
candidate has been condoned without any authority of law in deviation from the terms
and conditions of the advertisement. According to Shri Uzir the list has expired with
effect from 23.09.2000 and the court having no power to extend the validity cannot
direct the State to appoint any candidate from the said list. Mr. Bhattacharjees,
Learned Senior Counsel argued that the selection as a whole cannot be assailed and
there cannot be any bar in giving a direction to the state to appoint the eligible
candidates recommended by the Commission. Shri Bhattacharjee further submitted
that the validity of the select list has been extended during the pendency of the writ
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petitions and therefore, there is obviously no bar in complying with the
recommendation of the Commission. Shri. N.M. Lahiri, Learned Senior Counsel for
the writ petitioner of WP(C)No. 2294/2000 argued in tune with Shri. Bhattacharjee
and urged that the Government be directed to go ahead with the appointment.
8. A careful scrutiny of the respective submissions would show that the following
questions need to be answered in the writ petitions, namely :-
(a) Where the select list prepared more than a year ago could be given effect to in view of the pendency of the writ petition and the direction given by this court extending its validity?
(b) Whether eligibility criteria i.e. age could be condoned
by the Government in respect of some candidates and whether inclusion of their names in the select list would vitiate the entire select list; or alternately whether the select list could be acted upon to the exclusion of ineligible candidates made eligible dehors the Rules?
(c) Whether the candidature of Dr. M.M. Deka, writ
petitioner in WP (C) No. 5095/99, was duly considered along with other candidates by the Commission.
9. Before we examine the above questions in the context of the argument
advanced, it would be of convenience to quote herein below the advertisement No.
6/99 and the select list prepared by the Commission :-
"ADVERTISEMENT"
"............. (1) 3 (three) posts of Principal-cum-Chief
Superintendent in the Medical Colleges of the State under Health and Family Welfare (B) Dept., Govt. of Assam (Re-Advertisement). 1(one) post reserved for ST(P). Scale of pay: Rs.10,050/- P.M. to Rs. 15,575/- P.M. Qualification and Experience: Recognised and Registered MBBS under relevant Act with recognised post graduate Degree. Persons holding the post of Professor preferably Head of Dept. and 10(ten) years teaching experience as Professor/Associate Professor out of which 5(five) years should be as Professor in a Dept. of a Medical College of the State. Age: Minimum 40 years and maximum 54 years of age as on 01.01.1999. (N.B:- This is in cancellation of the earlier advertisement de Advt. No. 7/97 Item No.2. However candidates who had applied earlier need not apply again)".
135
"SELECT LIST" EXTRACT OF COMMISSIONS RECOMMENDATIONS. No. 71 PSC/DR-3/1/97-98 dtd 23.09.99.
Position Sl. No. Name Category 1. 6 Dr. Khagendra Narayan Barua 2. 16 Dr. Sujit Nandi Purkayastha 3. 20 Dr. Ratneswar Swargiary ST(P) 4. 18 Dr. Dilip Kr. Sarkar SC 5. 3 Prof (Dr.) Surendra Rana Pargiri 6. 2 Dr. (Mrs.) Nandita Choudhury
The candidates are recommended by the Commission for the post of Principal-cum-Chief Superintendent in the Medical Colleges of the State under the Health and Family Welfare (B) Department in order of preference".
10. The advertisement quoted above does not mention of any validity period of the
list to be prepared. Shri. G. Uzir vehemently argued that the court has no power to
extend the validity of the list. According to him, the order dtd 19.09.2000 passed by
this court in WP(C) No. 3945/1999 extending the validity period of the impugned list
till disposal of the writ petition is beyond the power of the court. In support of this
contention, Shri Uzir also relied upon a decision of the Supreme Court in Laxmibai
Kshetriya, Gramin Bank Vs. Chand Behari Kapoor and others (1998) 7 SCC 496. In
para – 11 of the said Judgment, the Supreme Court observed that decision of the High
Court that the panel remains alive until all the persons in the panel are appointed is
wholly erroneous. This observation was made in a different legal context in
connection with a panel prepared under the Regional Rural Banks Act. 1976. This
decision cannot determine the course of action in the instant case. No provision could
be cited at the bar to show that a list prepared by the commission is valid for one year
only. Even, there is no mention of any validity period in the advertisement. If we go
by the prevailing norm that a list normally remains valid for a period of one year only,
the writ petitions having been filed before expiry of one year would have kept the list
valid. This view is drawn from a decision of the Supreme Court in State of U.P Vs.
Ram Swarup Saroj AIR 2000 SC 1097. The Supreme Court observed as follows:-
"10. Similarly the plea that a list of selected candidates for appointment to the state services remains valid for a period of one year only is primarily a question depending on facts and yet the plea was not raised before the High Court. Secondly, we find that the select list was finalised in the month of November 1996 and the writ petition was filed by the respondent in the month of October, 1997 i.e before the expiry of one year from the date of the list. Merely because a period of one year has elapsed during the pendency of litigation, we cannot decline to grant the relief to which the respondent has been found entitled to by the High Court...........”.
136
11. It we go by the above ratio, the writ petition WP(C) No.2323/2000 filed by
Dr. K.N. Barua on 12.05.2000 being well within the period of one year from the date
when the select list was prepared cannot be thrown away if the list is otherwise found
to be valid. This answers the question raised by Sri. Uzir about the enforceability of
the impugned select list.
12. Next comes the question relating to relaxation of eligibility criteria dehors the
Rules. It has already been indicated hereinbefore that the selection process has been
assailed primarily on the ground that a few over-aged candidates were permitted to
take part in the interview and some of them have been recommended. Shri Uzir.
Learned counsel referred to Annexure-XIV and XV (in writ petition (c) No.
5095/1999) in order to show that Dr. R. Swargiary, the third recommended is over-
aged by nine months and lacked teaching experience by two months and that the said
deficiencies were removed by the State dehors the Rules. The advertisement quoted
above do not include any clause for relaxation of age or any other eligibility criteria.
There is also no recruitment Rules for selection of the Principals of the Medical
Colleges. No application was placed to show that such relaxation was permissible
under any Executive Instruction. It would therefore, appear that the condonation and
relaxation of the eligibility criteria were made without any authority of law.
Relaxation of eligibility criteria in a selection process in a given case may not be
always wholly irrelevant as the selection means a search for the best available
candidate. Here no special reasons or circumstances are available to inspire this court
to approve the impugned action. It was obviously not proper on the part of the State to
relax qualification in respect of certain candidates in the absence of any provision that
the state may in appropriate case relax eligibility criteria specified in the
advertisement. The advertisement quoted hereinbefore in para-9 clearly prescribes
teaching experience of 10 years as professor/Associate Professor between the age
group of 40 years and 54 years as on 01.01.1999. That being so
condonation/relaxation of eligibility criteria with regard to age and teaching
experience in respect of Dr. Swargiary and a few others cannot be approved as an
attempt to selection the best available candidates. The powers relaxation should have
been reflected in the advertisement itself creating an avenue for many others to apply
for consideration of their candidature.
13. To bring home the above conclusion, Shri Uzir, Learned Counsel assisted the
court are in attention to a number of decision of the Supreme Court. In Shalnda Hasan
Vs. State of Uttar Pradesh and others (1990) 3 SCC 48, the Supreme Court held that
137
in the absence of statutory Rules providing of salvations, the advertisement must
indicate that the selection committee/appointing authority has the hope to relax the
qualification. In District Collector and Chairman, Vizianagaram S.W.R.S. Society Vs.
S. Tripura Sundari Devi the Supreme Court held as follows:-
"6. It must further be realised by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointment authority and the appointee concerned. The leveled are all those who had similar or even than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are reliable. No court should be a party a perpetuation of the fraudulent practice. We are afraid that the Tribunal lost sight of this fact".
14. It may be mentioned herein that in Virendra Nath Gupta and another Vs. Delhi,
Administration and others (1990) 2 SCC 30 decided a low days prior to Shainka
Hasan (supra), the Supreme Court refused to interfere with the appointment of a
teacher since the eligibility criteria was relaxed in accordance with the provisions of
the Rules. Even prior to that in P. Mahendran & others Vs. State of Karnataka and
others (1990) 1 SCC 411, the Supreme Court held that if a candidate applies for a post
in response to an advertisement issued by the Commission in accordance with
recruitment rules, he acquires a right to be considered for selection in accordance with
the existing Rules. This right cannot be affected by amendment of any Rules unless
the amending Rules is retrospective in nature. This observation of the Supreme Court
indicates that the selection process once set in motion has to be within the terms and
conditions of the advertisement. This alternately suggests that any change of the
qualification once prescribed is not permissible unless notice thereof is given to all the
intending candidates.
15. The decision of the Supreme Court referred to above clearly supports the
contention raised by Shri Uzir, Learned Senior Counsel that once the advertisement is
made, the qualification prescribed therein cannot be altered as the matter is not
confined between the appointing authority and the appointee concerned. It emerges
that the relaxation of qualification of Dr. Swargiary and a few others and incorporation
of their names in the merit list has been contrary to the law in force. This would be
clear from the comparative table showing merit-cum-experience an age of selected
candidates available as Annexure-XVI in writ petition (c) No. 5095 of 1999 which is
quoted below:-
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"COMPARATIVE TABLE SHOWING MERIT CUM EXPERIENCE AND AGE OF
SELECTED CANDIDATES AND THE PETITIONER.
Name
Positionas perSelect List
Sl No
Date oappointment aAssociate Professor
Date of Appointment and Joining as professor and head of Dept.
Upper Age Limit 1.1.97/ 1.1.97
Remarks
Mr. Khagendra Narayan Barua Professor Dermatology G.M.C
1 6 19.06.1987 17.02.1992 Professor of Dermatology
within 54 Years
GMC, Guwahati not a Head of Department.
Dr. Sujit Nandi Purkayastha. Principal I/C Silchar Medical College.
11 16 Not Known Not Known
above 54 years as on 1.1.97
Crossed upper age limit, Principal I/C Silchar Medical College.
Dr. Ratneswar Swargiary ST(P)
111 20 Not Known 11.03.1993 Above 54 as on 01.01.97
1. By GovtNotification HLB 387/92/64 dtd 30.12.97condoned over aged by9 months.
2. By Govt. NotificationHLB 387/92/69 dtd 07.03.1998 govt. relaxed teaching experience by twomonths.
3. Crossed upper agelimit.
Dr. Dilip Kr. Sarkar (SC) Professor & Head of Dept. of Surger, Silchar Medical College
IV 18 12.03.93 22.09.95 Above 54 as on 01.01.99
1. Crossed upper age limit.
2.Have far below merit cum experience as per advt.
139
Dr. S.N.Rana Patgiri Professor & Head of Dept., Gynecology, Dihrugrh, Medical College.
V 3 Not Known Not Known Above 54 as on 01.01.99
Crossed upper age limit.
Dr. (Mrs.) Nandita Choudhury, Professor and Head of Dept. of Nephrology GMC
VI 2 19.02.1985 01.05.1991 Within minimum and maximum age limit.
Dr. Munidra Mohan Deka, Professor & Head of Dept. of Radiology, GMC, Current charge of Principal cum Chief Superintendent GMC on 22.09.99.
Petitioner
14 (17.06.97) Joined on 06.07.87
(08.04.88) 16.05.88
47 years 8 months as on 01.01.97
Have full qualification and experience besides being with age limit as notified.
Note:- (A) Notification No. 7/97
(i) Qualification
Persons holding the post of professor preferably Head of Dept., And ten years
teaching experience as professor/Associate Professor out of which 5(five) years should
be as Professor in Department.
Age limit : 40 years to 54 years of age on 01.01.97.
Reservation : ST(P) 1 No
SC 1 No
(B) Notification published on 14.06.99
(i) Qualification and experience : same as 7/97
(ii) Age Limit : 40 years to 34 years as on 01.01.99
(iii) Reservation : ST(P) 1 No.
17. It would appear from the comparative table quoted above that Dr. Sujit Nandi
Purkayastha who has secured second position crossed the upper age limit. Dr.
Ratneswar Swargiary who was also over-aged was given relaxation both in respect of
age and experience. Similarly Dr. Dilip Sarkar who had secured fourth position was
also over-aged and did not have the experience as required. Dr. Surendra Rana Patgiri
was also over-aged. But all have been recommended by the Commission. The name
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of Dr. M.M. Deka, who appears to have all the requisite qualifications, does not
appear in the select list. The comparative statement and the select list read together
show that ineligible candidates were considered and recommended. Had they been
excluded from the selection process, Dr. Deka might have secured a position in the
merit list. The impugned select list, therefore, cannot be accepted as an out-come of
an innocent exercise.
18. There is no dispute with regard to the law that those candidates who do not
have requisite qualifications have no right to appointment. Some of the candidates
who did not have the requisite qualifications were considered by way of
relaxation/condonation and recommended. This is contrary to the law an in deviation
from the conditions and eligibility criteria as prescribed in the advertisement. As
such, the process of selection as a whole stands tainted. This list prepared by the
Commission might have been completely different had the commission acted in strict
compliance with the prescribed qualification. Injustice has been caused not only to the
candidates interviewed but also to the candidates who might have applied had the
relaxation clause been made known to them. This shows that the selection process
was not in tune with the objective sought to be achieved.
19. Next comes the question whether Dr. M.M.Deka, writ petitioner in writ
petition (C) No. 5095/1999 was duly considered by the commission. From the
comparative table, it appears that Dr. Deka had all the qualifications as per
advertisement. He was also within the age limit prescribed in the advertisement. I
have examined the relevant file produced by Shri N. Dutta, Learned Senior Counsel
for the commission in order to ascertain whether Dr. Deka was duly considered or not.
The apprehension expressed by Shri Uzir, Learned Senior Counsel that Dr. M.M.
Deka was not at all considered by the commission is not correct. Records available in
the file show that he was duly considered along with other candidates. It is obviously
not within the powers of this court to embark upon a scrutiny as to the correctness of
the marks given to him as it pertains to administrative precision involving expertise in
medical science. However, the contention that Dr. Deka was not at all considered by
the Commission is not supported by the materials on record.
20. For reasons above, it has to be concluded that the select list cannot be sustained
in law and no appointment can be made from this list. This conclusion shall not,
however, in any way be construed as an adverse commence to the efficiency and
competence of the candidates recommended. Fault is not with them but the selection
process.
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21. In the result, the writ petition (c) No. 5095/1999 is allowed. The select list dtd
23.09.99 is hereby set aside. Other writ petitions, namely, Writ petition (C) Nos.
3945/1999, 2294/2000 and 2323/2000 are also simultaneously disposed of with a
direction to the state to initiate selection process afresh in the light of the State to
initiate selection process afresh in the light of the observations made hereinabove and
in accordance with the provisions of law without further loss of time.
No order as to costs.
***
142
Writ Appeal No.296/2001 & connected cases D.D. 23.8.2001
The Hon'ble Chief Justice (Acting) Mr. RS Mongia
The Hon'ble Mr. Justice B.B.Deb Smti.Debajani Choudhury & Others – Appellants (Respondents) vs. The State of Assam & Others – Respondents Irregularities in selection process in combined Competitive Examination 1998 held for recruitment to Assam Civil Service-I Junior Grade etc. The irregularities listed are:
(1) 5 out of 89 selected candidates were related to Members/officials of P.S.C. (2) Answer scripts of 9 candidates tallied with each other
(3) Additional scripts of some selected candidates did not have the seal and
signature/officials and Invigilators
(4) In some cases marks awarded were more than the maximum marks fixed for the questions
(5) Though sub questions were given marks, marks awarded to the whole question
and
(6) In one case (Roll No.1005) answers tallied verbatim with the model answers.
The High Court has held that the selection cannot be said to be vitiated on the basis of irregularities 1 to 5. As far as irregularity No.6 is concerned, the High Court has directed the State Government/P.S.C. to take action against the selected candidate and any other person if unfair means has been adopted and consequently, the High Court has dismissed the writ petitions challenging the selection made by P.S.C.
J U D G M E N T This judgment an order of ours will dispose of writ Appeal Nos. 269, 297,298
and 2001 as well as writ petition (Civil) Nos. 141,190 and 286 of 2001. As to how we
seized of the writ petitions itself will be indicated hereinafter.
2. The Assam Public Service Commission (APSC) issued an advertisement,
which was published in the Assam Tribune in its issue dtd 28.09.1998 notifying its
intention to hold a preliminary examination of the combined Competitive
Examination, 1998for screening candidates for the main examination for recruitment
to the Assam Civil Service-I Junior Grade, Assam Police Service Junior Grade,
Labour Officer, Superintendent of Taxes etc. It may be observed here that the
aforesaid advertisement stated that the actual number of vacancies against each
service/posts would be notified in due course as and when received from the
143
government. A copy of the advertisement has been appended as Annexure-I to the
writ petition. We may observe here that the recruitment to the post is governed by the
statutory rules known as the Assam Civil Service (Class-I) Rules, 1960. The Rules in
terms provide for holding a competitive examination. There is a preliminary
examination and whosoever qualities in the preliminary examination, he is required to
pass the main examination and depending upon the vacancies, the candidates qualified
in the main examination are called for viva voce. The marks allocated for the written
examination and viva voce are 1400 and 200 respectively. It may further be stated
here that there is no requirement under any rules/regulations for obtaining a particular
minimum marks in a particular subject for qualifying in the main written examination
nor there is any requirement for securing minimum particular marks in the viva voce.
In all there are 4(four) subjects in the written examination. The compulsory papers are
General Studies and English of 300 marks each whereas there are two optional
subjects. Each optional subject is of two papers of 200 marks each. So far as general
category candidates are concerned, such candidates were required to obtain minimum
of 40% marks in the aggregate for being called for viva voce and 30% for the reserved
category candidates. In other words, minimum of 560 and 420 marks respectively
were required to be secured by general category/reserved category candidates in the
aggregate of the written examination.
3. Four petitioners filed the writ petition in this court alleging that they had duly
qualified in the written examination and were called for the viva voce. They had done
extremely well in the written examination as well as in the viva voce, yet in the final
selection list that was published, their names did not occur. In fact, according to the
writ petitioners, many irregularities had been committed by the commission in giving
marks to the answer-scripts of the written examination as well as viva voce and some
relations of the members of the commission had been selected due to favouritism. Out
of the candidates appears in the written examination and viva voce, 89 candidates
including the reserved categories were selected for various posts. A detailed reference
to the averments in the writ petition would be made hereinafter. When the writ
petitions had come up before the learned Single Judge, some interim orders were
passed on 10.01.2001, 13.03.2001, 22.03.2001, 03.04.2001, 17.05.2001, 21.06.2001,
24.07.2001 and 10.08.2001, which are reproduced here for ready reference:-
"10.01.2001" Heard M.K. Choudhury, learned counsel for the petitioners, Mr. N.
Dutta, assisted by Mr. H.B. Sarma, learned Standing Counsel, APSC and Mr. T.C.
Chutia, learned Junior Government Advocate, Assam.
144
Let a notice of motion issue calling upon the Respondents to show cause as to
why a Rule should not be issued, as prayed for; and/or why such further or other order
or orders should not be passed as to this court may seem fit and proper.
The notice is made returnable within six weeks.
Mr. Chutia accepts notice for Respondents No.1 and Mr. H.B. Sarma, accepts
notice on behalf of Respondents No.2 Notice to Respondents 3 to 9 be issued by Regd.
A/D. Steps be taken by 12.01.2001. Notice to Respondent Nos. 10 to 98 be issued
through the Respondent No. 2.
A prayer for interim order has been made to stay the impugned APSC
recommendations dtd 26.12.2000 and for directing the Respondent No.1 not to make
any appointment on the basis of the said recommendations. Any such stay order at
this stage will delay the filling up of vacancies to different posts and such non-filling
of vacancies will affect the work of the Government. I am therefore not inclined to
stay the impugned APSC recommendations dtd 26.12.2000. However, if after return
of notice, counter affidavit is filed and records are produced, and it is revealed that a
strong prima facie case is made out and at that stage no appointment has been made,
then the prayer for interim order will be reconsidered by the court. It is also made
clear that any appointment on the basis of the said recommendations made in the
meanwhile shall be so subject to result in the writ petition.
List after six weeks.
"13.03.2001"- Heard Mr. M.K. Choudhury, learned counsel for the petitioners. Mr.
T.C. Chutia, learned counsel for the Respondent No.1 Mr. N. Dutta, learned Sr.
counsel for the Respondent No.2, Assam Public Service Commission, Mr.H.R.
Choudhury, learned counsel for the Respondent No. 84, Mr. P.J. Phukan, learned
counsel for the Respondent No. 29 and Mr. Mazumdar for the Respondent No. 46 and
Mr. Mr. A.K Phukan, learned Sr. Counsel for the Respondents No.
11,13,14,15,17,18,20,22,24,28,30,31,33,34,35,36, 37,38,40,43,44,47,48,49,51,52,54,
55,56,57,60,61,62,63,64,67,69,70,71,75,76,77,78,80,81,84,85,86,87,88,90,91,93,95
and 97. Specific allegation has been made against the Respondent Nos. 3 to 9. Office
note dtd 27.02.01 indicates that service of notice upon Respondents 3 to 9 have been
sent by registered post. Petitioner shall take fresh steps for service on notice upon
Respondent Nos. 3 to 9 by Special messenger through the Registry of this Court, Mr.
N. Dutta, learned Sr. Counsel for the Respondent No.2 submits that he has received
145
the relevant records and will be filling counter by Monday next. Post the matter for
hearing on 22.03.2001 as first item in the hearing list. In the meantime the parties
shall exchange affidavit. Till 22.03.2001 no appointment shall be made to the selected
list candidates, if not already appointed.
"22.03.2001"- Heard Mr. M.K. Choudury, learned counsel for the writ petitioners.
Also heard Mr. N. Dutta, learned Sr. Counsnel for APSC, Mr. A. Roy, learned Sr.
Counsel for the Respondent No.3 Mr. K.N. Choudhury, learned Sr. Counsel for
Respondents No. 5,6,7,16,32 and 41. Mr. A.K. Phukan, learned Sr. Counsel for
Respondents No. 70 and Mr. T.C. Chutia learned State Counsel for Respondent No. 1.
The Controller of Examinations, Assam Public Service Commission is present
with relevant records in original.
Registry is directed to receive the said records after verification and keep the
same in the safe custody of the Deputy Registrar (Judicial).
Let the matter be listed on 3rd April 2001 as first and fixed item. In the
meantime, the parties may exchange pleadings.
"03.04.2001"- Heard Mr. M.K. Choudhury, learned Advocate for the
petitioners and Mr. N. Dutta, learned Sr. Standing counsel for the APSC.
The scripts and other documents with regard to six candidates with regard to
whom allegations have been made shall be examined by this court with the help of a
small committee. Roll Nos. of the petitioners are 7856;548;1737 and 6823. The Roll
Nos. of the Respondents are 898; 5145; 33207; 3472; 20348 and 28061.
General Studies and General knowledge are common to all the candidates.
Roll Nos. and subjects of the petitioners submitted by the learned counsel are
as follows:
Roll Nos. of the Petitioners Subjects 7856 Political Science I and II Animal
Husbandry and Veterinary Science I and II
548 Political Science I and II
English Literature I and II 1737 Political Science I and II Assamese I and II
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6823 Political Science I and II Geography I and II 898 Sociology I and II English Literature I and II 5145 Political Science I and II Sociology I and II 33207 History I and II Philosophy I and II 3472 Education I and II Assamese I and II 20348 Political Science I and II Economics I and II 28061 Education I and II Agricultural I and II
The Controller of Examination of APSC shall contact the Registrar General
and shall separate out the scripts of these candidates and shall place it in a separate
sealed and with necessary subjects correlated with code nos. The Registrar General
with the help of Registrar (I & II) and Registrar Administration may make random
sampling of General Studies and General Knowledge papers to find out whether
discrepancy and irregularity are there as alleged.
This shall be done within a period of seven days. Thereafter list this matter for
further orders on 19.04.2001 as first item. Heard in Part.
A copy of the order shall be handed over to the Learned Counsel for the
parties.
"17.05.2001"- Heard the learned counsel for the parties. Earlier this court asked the
Registry to make random checking and the Registry submitted the report and pointed
out that there was glaring discrepancy/difference with regard to two candidates, Mr.
M.N. Dutta, learned Advocate for the APSC submitted that out of these two
candidates one has not been selected, but the other one has been selected.
To remove lurking doubt in general and for the ends of justice, I feel that the
following course shall be fair procedure.
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Mr. Dutta along with the officers of the APSC shall meet the Registrar General
an shall furnish to him the Roll numbers of all the selected candidates and the papers
of General Studies of all the selected candidates shall be taken up by the Registry
keeping in sealed cover and shall be scrutinized by the Registrar General with the help
of Registrar (I & E) and Registrar (Admn.) by comparing with he model answers
provided by the APSC. This shall be done as early as possible and not later than 15
days. The report shall be submitted before this court on.
" 01.06.2001"- List this matter on 11.06.2001 along with the report. The report shall
be submitted by the Registry in sealed cover.
" 21.06.2001"- As directed by this court the registry has submitted the report and out
of 89 selected candidates different anomalies have been found with regard to 70
candidates. No anomaly has been found in the answer scripts of the following
candidates by the Registry.
Sl.
No.
Code
No.
Roll No.
1 299 5247
2 676 13997
3 1100 33322
4 1161 35857
5 519 11253
6 1120 34033
7 1115 33496
8 70 13182
9 491 9052
10 127 2657
11 344 6703
12 1060 32095
13 679 14017
14 948 27996
15 326 6023
16 1080 33207
17 806 18329
18 786 16981
19 534 11592
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These 19 candidates may be appointed by the authority in accordance with law
and rules if so advise. Save and except these 19 candidates, the earlier stay order shall
continue. The learned Advocate for the parties shall be supplied with the photocopy of
the report so that they may file necessary objection against the report. Number of
photocopies to be supplied shall be informed to the Registry by the learned Advocate
for the parties. Photocopies shall be furnished by the Registry as early as possible.
The report for the present shall be placed in sealed cover ad may be opened by
Registry at the time of furnishing the photocopies.
Heard in part.
" 24.07.2001"- BEFORE;
THE HON'BLE MR. JUSTICE J.N. SARMA.
List this matter on 14.08.2001 for further orders
and attempt shall be made to dispose of the matter
on that itself, if possible.
"10.08.2001" – BEFORE:
THE HON'BLE MR. JUSTICE J.N. SARMA.
The matter has been listed to pass the following order:
1. It shall not be possible to hear the matter on 14.08.2001 as fixed earlier and the
date is shifted to 3rd week of September 2001.
2. Earlier a report was submitted with regard to the paper on General Studies of
selected candidates and that report is on record. Copies of the report have been
furnished by the Registry to the learned Counsel for the parties in the case, and
affidavits also have been filed by the parties with regard to the report which are
on record. They shall be considered at the time of hearing.
3. For the ends of justice and to maintain transparency and also; to remove all
apprehensions, I further pass the order as follows:-
i) The APSC through their authorized officer(s) within 7
(seven) days from today shall sort out the scripts of all the
papers of the selected candidates except General Studies
(copies are stated to be with Registry) and shall put them in
sealed cover packet with Roll Nos. code etc. at the back of
the packet.
ii) This order I have passed in presence the learned counsel for
APSC and the counsel for APSC is directed to instruct is
client to do the needful. After it is done, 3 Registrars of this
Registry shall scrutinizing the scripts and submit a report to
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this court if there are anomalies, patent errors, wrong doing
in the scripts which may be noticed by them. The Registrars
definitely are not in a position to re-assess/re-evaluate the
scripts, but they shall look to the scripts and find out if there
are patent anomalies as highlighted in the earlier report.
iii) The report shall be submitted to this court within 3 weeks
from the date of sorting out of the scripts. Thereafter scripts
again shall be placed in the sealed cover packet after
scrutiny.
iv) Copies of this order shall be furnished to the counsel for the
parties.
It is urged by the learned counsel for the parties that APSC
has already advertised for examination for the year 2001.
All persons including the persons involved in the litigation
may apply and appear in the examination, but that shall be
subject to the result of the writ petition and it will be
without prejudice to their right in the writ petition. The
persons who are involved in the litigation, who have not
applied, they may apply within 2 weeks from today and
the APSC shall consider those applications without raising
the question of last date of filing applications and the
learned counsel for APSC has assured that he will instruct
his client to do the needful.
"Show the orders to Registrars of this court so that
they may do the needful in terms of this order as
indicated".
4. Four writ Appeals, namely writ Appeal Nos. 296 of 2001, 297 of 2001, 298 of
2001 and 299 of 2001 have been filed against the interim order dtd 10.08.2001.
Learned counsel for the appellants (Respondents before the learned Single Judge, who
are the selected candidates) had argued the appeal at the motion stage and inter alia,
contended that the learned Single Judge had erred in ordering screening of the written
answer-scripts of the selected candidates in all the subjects. This, according to the
learned counsel for the appellants, had been done without assigning any reasons as to
why such screening was necessary for the decision of the writ petition. It was further
contended that even the two reports given by the Registrar of this court pursuant to the
earlier interim orders (which have been reproduced above) have not been discussed in
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the order dtd 10.08.2001 to justify the said order for screening the answer-scripts in
all the subjects of the selected candidates. While we were being taken through the
reports submitted by the Registrar, it was suggested by the learned counsel for the
parties that instead of spending time in these writ appeals, they have no objection if
the writ petition itself is decided by this Court, which will not only save time but it
will also avoid further appeal from the order of the learned Single Judge by any of the
aggrieved party. Since we are of the view that we have to go into the details in
deciding the appeals we acceded to the suggestion of the parties and we accordingly
sent for the files of the writ petitions to dispose of the same. That is how we got
seized of the writ petitions itself.
5. Let us now notice the averments/allegations made by the writ petitioners in the
writ petitions. It is mentioned in paragraph 7 of the writ petitions that Shri Tara Pada
Das, Respondent No.3 was the Chairman of the Assam Public Service Commission at
the relevant point of time and it was under his supervision that the written examination
as well as the viva voce test were held. It is further mentioned that as per the news-
paper reports on 20th July, 2000 a raid by the Income-tax officials was conducted at
the house of Respondent No.3 and cash worth Rs. 95,00,000/- was said to have been
recovered from his residence. It is further alleged that the said Chairman was removed
from his office, which fact is denied by the Assam Public Service Commission, where
in it has been mentioned that he relinquished his office on completion of his tenure.
After the Respondent No.3 ceased to be the Chairman sometime in August 2000, the
Respondent No.4 Shri. Debi Charan Bora was appointed as the Chairman of the
Assam Public Service Commission. The further allegation are that even the new
Chairman was under the influence of the earlier Chairman and he could not discharge
his duties well and in a fair manner and the selections made under the supervision of
the earlier Chairman, Respondent No.3, were declared under the stewardship of the
new Chairman, Respondent No.4 on 26.12.2000 and that some of the selectees (Five
in number), namely, 1. Shri Pankaj Chakravarty, 2.Shri. Rajiv Thappa, 3. Shri Tenson
Engti, 4. Smti. Pallabi Gohain Das and 5. Smt. Anupama Chakravarty were the
relations of one or the other Member of the Commission. The aforesaid allegations
were based on the news-paper reports. Paragraphs 12,14,15,16, and 17 of the writ
petition contain the aforesaid allegations, which are as follows:-
"12. That when the final select list was yet to be declared by the APSC ad when the recommendation were yet to be sent, various news papers of Assam started reporting the illegalities committed in the process of selection. For instance, the Dainik Agradoot, a leading Assamese daily, in its issue dtd 19.12.2000 reported that the Commission has been influenced by money and politics and the select list was prepared, changed and thereafter re-prepare of five
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occasions. It was also reported that since the influence of Shri. Tara Prasad Das, the former Chairman, APSC was still there in the APSC, the new Chairman could not prepare a list solely on the basis of merit. Another news paper Asomiya Pratidin in its issue dtd 26.12.2000 reported that the sister-in-law of Shri. Tara Prasad Das, daughter of the Private Secretary to the Chairman, and sons/daughters and close relatives of some of the members would be selected by the APSC. In fact the December 26 issue of Asomiya Pratidin reported the Roll Nos. of certain candidates who were selected by resorting to unfair means inasmuch as either they were sons/daughters/near relatives of members who conducted the viva voce test and/or were associated directly in the selection. The report also revealed that many near relatives of influential persons were also selected and that Shri. Tara Pada Das gave the question papers to his sister-in-law, fifteen days before the date of the written test".
"14. That from the select list, the petitioners to the great dismay
found that whatever was reported in the news papers were actually reflected in the select list. For instance, Smt. Pallabi Gohain (Respondent No. 92) whose name appears at Sl. No.17 at page 4 of the select list was select was selected as Inspector of Taxes. Smt. Pallabi Gohain happens to be the sister-in-law of Shri Tara Pada Das, the Respondent No. 3.
Shri. Pankaj Chakraborty(Respondent No. 16) was selected
under category I of ACS Junior Grade and his name appears at Sl. No. 7 who happens to be the son of he Respondent No. 5 Shri. Promod Chakraborty. The name of Shri. Rajiv Thapa (Respondent No. 32) appears at Sl. No. 23 of category ACS Junior Grade who happens to be the son of the Respondent No. 6 Shri. Pahal Thapa.
One Shri. Tenso Engti (Respondent No. 41) has been selected as
Superintendent of Excise who is the son of Respondent No. 7 Shri Dorsing Tera.
Further Smt. Anupama Chakraborty (Respondent No. 42),
daughter of the Respondent No.8 Shri. S. Chakraborty got the selection as Assistant Registrar of Co-op. Societies.
The aforesaid example are only illustrative and there has been
allegations of more irregularities. For instance, the nephew of the Controller of Examinations is also reported to be selected; however, because of paucity of time, the petitioners could not ascertain the fact. There has also been allegations that sons, daughters of near relatives of many influential persons have been selected.
"15. That the petitioners beg to state that the respondents Nos. 3
to 9 were all directly associated in the process of selection. The fact that their near relatives have been selected is itself enough to vitiate the entire selection".
"16. That the Respondent No.3 was the person under whom the
written test as well as viva voce test were held. The Respondent No.3 was not only directly associated with selection but in fact he was the main person behind the entire selection. As such, the
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selection of Pallabi Gohain, the Respondent No. 92, who happens to be the sister-in-law of the Respondent No.3 is illegal and in fact the direct association of the Respondent No.3 in the recruitment process has vitiated the entire selection.
"17. That as already stated hereinabove, the Respondent No. 16 Shri
Pankaj Chakraborty is the son of the Respondent No.5 Shri. Promod Chakraborty, Similarly, the son of Respondent No.6, son-in-law of Respondent No.5 Shri. Promod Chakraborty, Similarly, the son of Respondent No.6, Son-in-law of Respondent No.7 and daughter of the Respondent No.8 have been selected and their names have been recommended by the impugned list. The Respondents Nos. 3 to 9 are all directly associated in the selection process and the Respondent No. 3,5,6 and 7 conducted the viva voce test. Thus the inclusion of the names of their near relatives in the impugned selection list has vitiated the selection".
6. It may be observed here that the result of the selection was published by the
Assam of the selection was published by the Assam Public Service Commission on
26.12.2000 but no appointment has been made till date and according to the stand of
the State Government the appointment could not be made as the writ petitions were
pending in this Court.
7. It will be apparent from the allegations made in the writ petition that the main
burden of song is that some relations of the members of the Commission have been
selected. In their reply filed on behalf of the Assam Public Service Commission, the
relationship of some of the candidates with the officials of the Commission has not
been denied. But it has been stated that none of the members of the Assam Public
Service Commission related to the candidates took part in the process of selection
either in the written examination or in the viva voce. Rather letters have been annexed
to the reply filed by the Assam Public Service Commission, which were written by the
members themselves informing the Chairman of the Commission that some of their
relations were the candidates for the post in question. In fact this is required under
Rule 49 of the Assam Public Service Commission (Procedural and Conduct of
Business) Rules, 1986.
8. Before dealing with the arguments of the learned counsel for the parties it will
be opposite to notice the procedure which is argued was followed by the Commission
regarding the evaluation of the answer-scripts.
9. The candidate appearing in the written examination is given an answer-book
in which he is supposed to write the answers. The Roll No. which is to be filled in by
the candidate is later on torn off and instead a fictitious Roll No. or Code No. is
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mentioned by the officials of the Commission for which a record is kept as to find out
against which Roll No. which fictitious Roll No. or Code No. is given. In the answer
book there is a column where the Invigilator in the Examination Centre is supposed to
put his initials to identify the genuineness of the answer-book itself. In the
continuation-sheet which may be asked for by the candidate in case he cannot
complete writing of the answers in the main answers in the main answer-book and
supplied to him, the Invigilator is supposed to put his initials but the candidate is not
supposed to write his Roll No. in that continuation sheet. However, a small slip of
paper is attached to the continuation-sheet on which the candidate is required to fill in
his Roll No. as well the continuation sheet or book No. Suppose he uses two
continuation-sheets he is required to write Book No. 1 and 2. That slip of paper is
removed by the officials of the Commission and the same fictitious Roll No. or Code
No. which is given in the original answer book is given on the slip before the answer-
book are despatched to the examiner for assessment. In other words, the examiner is
not supposed to know as to whom does a particular answer-book belong. Further the
total marks obtained by a candidate in the main written examination are neither made
known to the candidate or published nor made known to the Members of the viva voce
Committee. It is only after the viva voce committee has awarded particular number of
marks, the entire result is compiled and accordingly the merit list is prepared. In the
present case the aforesaid procedure is said to have been followed by the Assam
Public Service Commission.
10. Now coming to the reports submitted by the Registrar of this Court pursuant to
the interim orders passed by the learned Single Judge, which have already been
reproduced above, the first report dated 12.04.2001 may be reproduced:-
"As directed by the Hon'ble Court, the Controller of Examination, APSC, contacted me on 09.04.2001 and placed before me the answer scripts to the question papers of General Studies. Along with the said answer scripts, the Controller of Examination aforementioned also placed before me the question papers of General Studies and "Memorandum of Instructions" containing the gist of answers meant for examiners. The relevant question papers and Memorandum of Instructions may be seen at Flag-A and B respectively.
I have, with the help of the Registrar (I & E) and Registrar
(Admn.), made random sampling of the answer scripts to the question papers of General Studies and we selected 50 answer scripts for our scrutiny. These answer scripts bear Code Nos.79,80,32,31,16,89,180,150,130,103,288,278,262,232,231, 372,371,336,335,308,496,490,477,425,414,540,522,520,691, 613,604,709,777,813,803,895,994,1007,1045,1010,1102,1129,1123,101,1131,1138,1147,1143,1144 and 1171. I examined the 50 answer scripts, with the help of Registrar (I & E) and
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Registrar (Admn), to find out if any discrepancy, anomaly or irregularity exists.
'During the scrutiny of the answer script bearing Code No. 32
(Flag-C), it was detected that 61/2(Six and a half) marks were given against the answer to question No.3, although mark allotted against the said question No. was only 5(five). This apart, the answers to question Nos. 2,3,5,6,7,8,11,12,14, 16,20,24,27,28,30,34,35.36,39,43,45,41,47,48 and 40 are surprisingly enough, found to have tallied in to with the Memorandum of Instructions (Flag-B), the gists of answers etc. prepared by the APSC.
With regard to the above, it may also be pointed out that the
answer to question No.4 consists of two paragraphs, the first paragraph was found to have completely tallied with the memorandum of instructions (Flag-B) and the second paragraph has little variation from what has been mentioned in the said Memorandum of Instructions.
On examination of answer scripts, bearing Code No. 36
(Flage-D) aforementioned is also found to have secured 10 marks against the answer to question No. 29, although the full mark allotted to the said question, as per relevant question paper (Flag-A) was 9. It is, also found in this particular case that 4 marks were given against the answer to question No. 18, although mark should have been, at the most, 3, because the answer to question No. 18(B) was wrong. In other words, even against the said incorrect answer too, 1 (one) mark was given to the examinee concerned.
Similarly, to the examinee bearing Code No. 336, marks is
found to have been given against the answer to question No. 13 despite the fact that the answer to question NOs. 13(C) and 13(D) were wrong. In other words, the examinee should have been given, as the most, 2 marks against the answer to question No.13, but he was given 4 marks.
As far as the remaining 48 answer scripts are concerned,
there is no major discrepancy, though the evaluation and markings cannot be considered to be completely satisfactory. The remaining 48 answer scripts are placed with this report".
11. After the first report was given certain other interim orders were passed by the
learned Single Judge reference to which has been made above, ad thereafter the
second report was submitted on 20.06.2001. The main discrepancies of facts which
have been pointed out in the latter report are that some of the additional answer-books
(continuation sheets) did not have the seal or stamp of the Commission. It was further
pointed out that in case of some of the candidates, the continuation-sheets even donot
have the signature/initials of the Invigilator. In case of 3 other candidates, the opinion
of the Registrar was that it was not possible to write 42 pages during the specified time
and in case of one of these candidates the answers tallied almost verbatim with the
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model answer supplied by the commission to the examiner. This allegation pertains to
Roll No. 1005. It may be observed here that the Registrar has only scrutinised the
answer books in the paper of General Studies as ordered by the learned Single Judge.
In the said paper model answers were prepared by the Assam Public Service
Commission for guidance of the examiners which are to be kept in mind for evaluating
the answer-books. As per the counsel for the Assam Public Service Commission, no
such model answers were prepared by the Assam Public Service Commission for the
other subjects. It has also been alleged that in the case of some of the candidates the
marks which have been awarded to the questions answered in the main answer-books.
In some of the cases, it is pointed out that where-ever there were sub-questions of one
question and each sub-question carried particular number of marks for sub questions,
no marks have been given for sub-questions but the entire question has been given
marks. In one case, it has been pointed out that out of 10 marks 11 marks have been
given and in one case out of 9 marks 10 marks have been given. It has further been
pointed out that in case of 9 candidates some of the answers tallied with each other.
These are the main discrepancies.
12. For our satisfaction, we had also sent for the details of marks in each subject
obtained by the selected candidates as also the marks obtained by them in the viva
voce. This was especially to see as to whether the alleged relatives of some of the
Members of ht Commission had been given under favour or favourtism by awarding
high marks in the viva voce. The marks obtained by the alleged relations in the
written examination and the marks obtained by them in the viva voce were awarded to
pull them up so that they could be brought in the selection zone. Even if much less
marks were given in the viva voce, it appears that as per the merit list they would still
be in the merit list.
13. So far as the argument that the relatives of the members of the commission
have been selected, it may be observed that as laid down in the decision of the Apex
Court reported in (1985) 4 SCC 417 (Ashok Kumar Yadav and others Vs State of
Haryana and others), there is no bar for the relations of the officials of the commission
to be the candidates for a particular selection otherwise if that was to be so the
relations of the members of the commission could never apply for a particular post
though otherwise they may be eligible and suitable. The only rider that was put by the
Apex court is that when a relation of an official of the Commission happened to be a
candidate, such official should excuse himself from the selection process. This
procedure had been followed in the present case. Consequently, we are of the opinion
that selection cannot be said to be vitiated simply because selection of 5(five)
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candidates who are relations of such officials out of 89 selected candidates. Some
relatives have not been selected also.
14. So far as the allegations in the writ petition are concerned, as observed above,
the main allegation was regarding the relationship of some of the members of the
commission with the candidates, However, no definite allegation was made as to what
irregularity was committed in the selection process. It was to satisfy that the court had
passed the aforesaid interim orders to see if any case is made out of quashing the
selection.
15. So far as the discrepancy pointed out in the reports of non-printing of stamp or
the seal of the Commission on the continuation sheets is concerned, it has been replied
to by the Assam Public Service Commission in their affidavit that the logo of the
Commission or the seal of the Commission was some how could not be printed in the
continuation-sheets but it was decided much before the commencement of the
examination that the continuation-sheets without logo or the seal of commission would
be used by the candidates. However, Invigilator was to put his signature/initials on the
continuation-sheets. Since there is no particular column in the continuation sheets
where the invigilator was to put initials as had been provided in the main answer-book.
The invigilators had put signature or initials either on the top corner of the additional
answer-book or on the slip of paper pasted on the first page of the additional answer-
book for writing Roll No. and Book No. by the candidates, which was to be removed
by the official of the commission before sending the answer-book to examiners. In
other words, according to the Commission either the continuation- sheets itself had
contained the signature/initial of the Invigilator or the slip/sheet attached to the
answer-book. Otherwise also it does not seem to be answer-book. Otherwise also it
does not seem to be probable that if the candidate was to replace his continuation sheet
at a later stage, he had to manage the same by influencing the Invigilator not to
sign/initial on the continuation but only on the slip so that later on he may change the
continuation-sheet with the other continuation sheet. The invigilator in a particular
centre would be necessarily be more than one on what particular date particular
Invigilator would be there would normally be not known to the candidates. Thus if
such eventuality was to arise, the candidate must have manage with either the officials
of the commission or the examiner. In other words he must know who is the examiner
of the particular paper. We do not thing that such probability arose in the present case.
Moreover, no such allegations are contained in the writ petition.
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16. So far as the question of tallying of some answers of 9 candidates is concerned,
the reply given by the Commission is that firstly those candidates were in different
centres and even if some of them were in the same centre they were in different rooms.
The possibility cannot be ruled out that they had studied the answers from a particular
common book. Such a possibility, as suggested by the Commission cannot be ruled
out.
17. Be that as it may on this ground coupled with other grounds, we are of the
view that selection cannot be said to be vitiated.
18. At this stage we may deal with the particular case of Roll No. 1005 also. It has
been prima facie found by the Registrar of this Court that her answer script in the
paper of General Studies almost verbatim tallies with the model answers prepared by
the Assam Public Service Commission. According to the Assam Public Service
Commission, the model answers are prepared after the examination is over and are
sent to particular examiner for guidance for evaluating the answer-book. As to how the
answers to the various question of Roll No. 1005 are almost verbatim tallied with the
model answers, is a question to which the appointing authority/State Govt/ Assam
Public Service Commission as the case may be, must advert to this aspect and if it is
found that some unfair means had been adopted, the State Govt./ Assam Public
Service Commission may take action against that candidate and any other person in
accordance with law, we are not opining in this matter one way or the other and we
leave it to the appropriate authority to take appropriate action.
19. So far as the discrepancy mentioned in the report that certain sub-questions
were not marked and total marks were given for the whole question, it has been
replied that it is upto the examiners as to how to evaluate the sub-questions and it is
upto them either to give marks for a question at one place. In any case, it cannot be
said to be discrepancy. The other discrepancy is that some marks awarded to the
questions in continuation-sheet appeared to be more than the marks awarded for the
answers written in the first answer-book. It can hardly be said to be a ground. It
depends upon the examiner to assess the answer to a question. If the quality of the
answer written in the main answer-book is not satisfactory, definitely it would fetch
less marks and if the answer written in the additional answer-books is found more
satisfactory, it would fetch more marks. Regarding the other discrepancy pointed out
in the report that one more mark has been given to two candidates, then the maximum
marks of the question, the reply of the Commission is that it has not been made any
difference in the merit list. Moreover, it was not required to get any pass marks in a
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particular subject. It may be that it is due to human error one more mark has been
given.
20. For the aforesaid reasons as discussed above, we are of the view that no useful
purpose would be served in getting the answer-books of the selected candidates in
other subjects examined as that may not serve any useful purpose in the
circumstances. According to us, no basis exists after seeing the reports of the
Registrar as also after hearing the argument of the learned counsel for the parties that
answer-books of other subjects of the candidates should be scrutinised. For the
foregoing reasons, we allow the appeal, set aside the orders dtd 10.08.2001 passed by
the learned Single Judge in writ petition No. 190 of 2001 and dismiss the writ petition
No. 190/2001. This will however subject to observations made in respect of Roll No.
1005 (Respondent No. 12 in the writ petition).
20. For the reasons recorded above, all other writ petitions are dismissed.
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Writ Appeal No.400 of 1999 D.D. 6.9.2001
The Hon'ble Mr. Justice J.N.Sarma The Honb'le Mr. Justice D.Biswas
Sri Abani Kumar Goswami & Ors. – Appellants Vs. The Chairman, Assam P.S.C. & Ors. - Respondents
Once notified vacancies are filled up there can be no further appointment from the select list even if vacancies arise subsequently.
Recruitment to 18 posts of Finance and Accounts Officers etc. Class-I Grade-III cadre of Assam Finance Service - P.S.C. after selection sent list of 19 candidates – Government asked P.S.C. to send 20 more names of selected candidates and P.S.C. sent names of another 6 candidates – All of them were appointed – Considering the serious irregularities in the selection process, the High Court has quashed the selection and appointment. Cases referred: 1. AIR 1981 SC 1777 Lila Dhar Vs. State of Rajasthan & Ors. 2. 1994 (3) SCC 308 State of Bihar Vs. Madan Mohan Singh & Ors. 3. (1995) SCC 486 Madan Lal & Ors. Vs. State of J & K & Ors. 4. (1998) 8 SCC 726 Pradip Gogoi & Ors. Vs. State of Assam & Ors.
JUDGMENT
The brief facts are as follows:
A writ application was filed by nine persons being Civil Rule No. 5055 of
1995. Their case was that they are working in different posts in the Finance
Department, Govt. of Assam and at that point of time the tenure of their service in the
said Department was more than five years (see para 1 of the writ application). It was
also claimed that all of them had the qualification to be appointed / promoted as
Finance & Accounts Officer / Treasury Officer / Deputy Director – Audit in Class-I
Grade-III cadre of Assam Finance Service.
2. An advertisement was issued on 17.7.93, which amongst others was
published in the Assam Tribune inviting applications for 18 posts of Finance &
Accounts Officer/ Treasury Officer / Deputy Director – Audit in Class-I Grade-III
cadre of Assam Finance Service in the scale of pay as mentioned therein. The break
up was General 11 + Reserved 7. That copy of the advertisement was annexed to the
writ application at an Annexure I. In response to the aforesaid advertisement the
petitioners and others submitted applications. The Assam Public Service Commission
(hereinafter referred to as the “Commission’’) also conducted a written examination
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on 22nd and 23rd October, 1994. On the basis of the written examination the
commission called 89 successful candidates including the petitioners for oral
interview. The oral interview was held on different dates i.e, on 6th, 7th, 10th, 11th and
12th July, 1995
3. The commission did not publish the select list for more than one year. It is
the case of the petitioners which is also admitted by the State of Assam that after the
advertisement was made some more posts fell vacant and under the circumstances, the
Secretary to the Govt. of Assam, Finance Department wrote a D.O. letter on 14.7.95 to
the commission requesting the commission to select the candidates to fill up 45 vacant
posts. But the select list was published by the commission for 19 candidates only
inspite of the fact that the Finance Department asked for requisite number of
candidates to fill up 45 vacancies. The said select list is claimed to be published on
12.9.95. The select list was published against 18 posts mentioned in the
advertisement. After publication of the select list, on 25.9.95 another letter was
written by the Secretary requesting the commission to send 20 more names of selected
candidates for the said posts in view of the fact that many posts were lying vacant.
Therefore, names of the another 6 persons were sent and it is the case of the petitioners
that those 6 candidates are from the waiting list. In fact no waiting list was at all
published by the commission. On the basis of the select list the 19 persons whose
names were forwarded by the commission were appointed and subsequently another 6
persons whose names were sent also have been appointed against back log of Schedule
Caste and Scheduled Tribe Candidates which was not at all mentioned in the
advertisement which was published. Petitioners further case was that the petitioners
are entitled to benefit under the Assam Finance Service Rules, 1963 specially the
benefit of promotion under Rule 6 (4) read with the proviso thereto.
On these backgrounds the writ application was filed with following prayers.
“ In the premises aforesaid, your petitioners prayed that your Lordships may be pleased to call for the records of the case, issue a Rule calling upon the Respondents as to why a writ of Mandamus or a Writ of like nature should not be issued directing the Respondents, more particularly, the Assam Public Service Commission to publish another Select List and / or a Waiting List containing names of the selected out of 89 candidates who appeared in oral examination to fill up the remaining 20 posts of Finance & Accounts Officer/ Treasury Officer / Deputy Director – Audit which are at present lying vacant in the Finance Department as would appear from the DO letters being No. FEB.228/92/250 dt. 14.7.95 and FEB.228/92/272 dt. 25.9.95 and further directing the Respondents to appoint
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the selected candidates in such waiting list against the remaining 20 vacancies in the Finance Deptt. as stated above for the interest of justice of public service and / or any other appropriate Writ or Direction should not be issued restraining the Respondents from taking any other alternative method or making fresh advertisement for filling up those 20 vacancies and on hearing the cause of cause may be pleased to pass any other order or orders as to your Lordships may deem fit and proper.”
4. No affidavit in apposition was filed on behalf of the Assam Public Service
commission. An affidavit in apposition was filed and it is said to be on behalf of
respondent No 2 and 3. This is a mistake committed by the learned Govt. Advocate as
in fact it is an affidavit in apposition on behalf of respondent No 1 and 2 namely, the
State of Assam and Commissioner & Secretary to the Govt. of Assam. This affidavit
was sworn by the Deputy Secretary to the Govt. of Assam. In the affidavit-in
opposition in para 7 it has been stated as follows:
“ 7) That in reply to the statements made in paragraphs 6 and 7, it is submitted that although the Assam Public Service commission.(here-in-after referred to as A.P.S.C.) made advertisement for 36 candidates, 18 for Director recruitment and for 18 promotion quota, yet the A.P.S.C selected only 2 candidates viz Smti Bharati Bora and Shri Rajendra Kumar Das against promotion quota and sent the same to the Secretary, Finance to the Govt. of Assam vide letter No. PSC/E 31/ 92-93, Dated Guwahati the 30th April 94.
Hence, the total vacancy position remained as 18+16=34. However, the said vacancy position in the mean while raised upto 45 due to retirement or otherwise. It may be stated here that the Vacancy position hardly remains static in as much as this position may sometimes change due to degradation or reversion posts if and when situation arises. As per Rule 5(2) of the Assam Finance Service Rules, 1963 as amended since the remaining post of promotion quota can be filled up from the select list of Director recruitment and vice versa, the A.P.S.C were informed about the position of increased vacancy vide this Deptt. D.O. No.FEB.228/92/250 dt. 14.7.95 and requested the A.P.S.C to send names to suitable candidates for appointment in the Assam Finance Service.
But inspite of the request the A.P.S.C forwarded a select list of 19 candidates only vide letter No.16 PSC/E 32/ Con/92-93, Dated Guwahati the 12th September 1995.
A copy of the aforesaid letter dated 30.4.94 recommending names of two candidates against Departmental (promotion) quota by the A.P.S.C for appointment in Class-I Grade-III cadre of Assam Finance Service, a copy of the letter dated 14.7.95 informing the A.P.S.C about vacancy position in the Finance Deptt. and requesting to send names of suitable candidates for appointing them in the said service, an except of the aforesaid
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Assam Finance Service Rules, 1963 for made of recruitment and a copy of the aforesaid select list forwarded by A.P.S.C on 12.9.95 are annexed hereto and marked as annexure A,B,C and D respectively.”
5. Before we proceed further we must state herein that it is a really strange
situation and strange course of conduct adopted by the Assam Public Service
commission. 18 posts were advertised by way of direct recruit. Promotion quota is to
be filled up according to Rule 6(4) of the Assam Finance Service Rules. So, as a
matter of fact, the Assam Public Service commission had not jurisdiction to make any
recommendation for promotion of the departmental candidates. It was beyond their
jurisdiction. But inspite of it the commission made recommendation for 19+6 i.e, for
25 candidates out of the competitive examination held by it which appears to be illegal
and without authority of law. Be that as it may there is power with the Government
that if persons are not found to be fit for promotion by the Departmental Promotion
Committee, the posts can be filled up by direct recruits and that is provided in Rule 5
of the Assam Finance Service Rules, 1963 which is quoted below:
“ 5. Method of recruitment. (1) Recruitment to the service shall be made-
(a) by promotion accordance with Rules.6 and 7, and
(b) through competitive examination in accordance with Rules.9
2. When sufficient number of candidates are not available for filling up vacancies reserved for promoted or direct recruits they may be filled up by candidates of the other category. The reservation of 50 per cent quota for promoted or direct recruits shall not be carried forward.’’
But before going for direct recruits of promotional quota, the department
promotion committee must make an exercise to find out whether such candidates are
available or not. Only thereafter the exercise for direct recruit is to be made. There is
nothing on record to show that this was done. In the absence of it the commission
should have kept itself confined to 18 posts which were available for direct recruits
and which was advertised.
When this matter came up for hearing the learned Single Judge by judgment
dated 30th July, 1997 found as follows:-
“ Mr Dutta further submitted that the petitioners legitimately expected that if a waiting list of 45 candidates had been published by the commission their names would have been included in such a waiting list and in that case they would have been entitled to be appointed in the posts advertised for against 45 vacancies as disclosed by the Finance Department in the said D.O. letter.
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According to petitioner’s calculation, against 5 vacancies Department has already appointed total 25 (19+6) candidates as trainees for absorption in those posts and that there remained 20 posts more out of the 45 posts yet to be filled up in the Finance Department. Therefore, petitioners prays for a direction from this court to fill up those 20 posts by preparing waiting list from amongst the 89 candidates who were successful in the interview held on 22nd and 23rd October, 1994.’’
This submission itself is not tenable in law in as much as once the advertised
vacancies are filled up, the Commission has no business to forward more names.
Mr. P. Prasad (since deceased) who was the counsel for the A.P.S.C.
candidly submitted before the Learned Single Judge by producing the records as
follows:
“……..From the records it is revealed that as per the direct recruit 89 candidates were called for interview and 18 nos of candidates were selected, but no select list in order of merit has been made so far.’’
In page 92 the Learned Single Judge came to the following finding:
“………….I hold that the commission has included in their selection those 45 posts apart from 18 advertised posts. The admitted position is that there is no select list of 89 candidates after the interview and, therefore, no waiting list was made, though attempt was made to show that appointed candidates apart from the selected 19 candidates were from waiting list. In the affidavit respondent is trying to show that those candidates are from reserved quota and they have been brought in and accommodated after revalidating the earlier select list exclusively meant for SC/ST reserved quota.’’
In page 93 it was found as follows:-
“………….I hold petitioners are not below average candidates. Further, the averments made in the affidavit regarding appointments by revalidating the earlier select list exclusively meant for the reserved candidates cannot by accepted as apparently a separate examination was held by the APSC for recruitment exclusively meant for SC/ST candidates and on the basis of that a select list was prepared.’’
In page 95 it was further held:-
“………. Mr. P. Prasad, counsel for the APSC submitted that no select list has been found in the record and this court also after elaborate effort did not find out the same.’’
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Accordingly in page 15 of the judgment following direction was given:
“15. In view of the above situation, the respondents commission shall publish a list of remaining 20 candidates remained to be filled up during the relevant period to enable the Govt. to fill up those posts, as the work of the Finance Department is under acute shortage of officers which apparently affects the public interest. While the list will be prepared, Commission shall consider the case of the 9 writ petitioners keeping in view their experience and the acquired training they have already undergone.’’
7. It may be stated herein that another Civil Rule was filed being W.P.(C) NO. 3890
of 1997 by eleven persons in which the following order was passed:
“ 5/12/97 The facts and the law in the Writ petition is squarely covered by the decisions of this Court in Civil Rule No. 5055/95. Accordingly the petitioner would be entitled for the similar benefit of the judgment and order passed by this Court on 30-7-97 in Civil Rule No. 5055/95. The Respondent commissioner shall accordingly consider the case of the petitioners also in the light of the direction given by this court in its decision dated 30-7-97 passed in Civil Rule No. 5055 of 1997. This order is passed upon hearing Sri N. Dutta, Learned Counsel for the petitioner assisted by Sri S.K. Medhi, Advocate and K.H. Choudhury, the learned Addl.Senior government Advocate and Sri B.J. Taludkar, Advocate for the APSC.’’
8. Therefore on 11.12.97 a review application was filed being Review Application
No. 7 of 1998 by the Chairman, Assam Public Service commission and the affidavit in
respect of this Review Application was sworn by one Sri Balindra Hazarika, Assistant
Controller of Examination APSC. Para 2 to 5 of the Review Application are
quoted below:-
“ 2. That the said writ application had been preferred by one Sri Abani Kumar Goswarni and twelve others jointly. The petitioners contended that they have been serving in different posts in the Finance Department of the Govt. of Assam since about 5 years following an advertisement dated 17-7-93 by the APSC for 18 posts of Finance & Accounts Officer / Treasury Officer / Deputy Director – Audit in Class-I Grade-III cadre of Assam Finance Service they all applied, APSC held written examination on 22nd and 23rd October, 1994 in which 1188 candidate took part, cut of which only 88 candidates qualified for interview. Five candidates absented themselves from interview and remaining 84 were interview with the help of expert deputed by government. On 6th, 7th, 10th, 11th, 12th and 13th July 1995. For the 18 advertised posts the commission selected and recommended the names of 19 candidates in order of preference vide letter dt. 12th September, 1995. Vice another letter dated 25th October, 1995 the commission recommended the names of six more candidates in order of preference. Meanwhile the commission held provisional examination for a number of
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said posts in which 4 candidates appeared out of which only two were selected on merit and their names were forwarded vide letter dt. 30-4-94.
3. That before publication of the select list vide letter dt. 14-7-95 requested
the APSC to select candidates to fill up 45 vacancies. The commission could not recommend 45 candidates because of their performance in the interview was not upto the mark. The APSC selected and recommended names of only 19 candidates for the 18 advertised posts and opined that the rest of the candidates who had appeared in the interview are not up to the mark and after proper advertisement selection of better candidates should be made. The writ petitioner contended that a waiting list should have been prepared and they should have been absorbed in the additional vacancies.
4. That the Hon’ble Court accepting the contention of the petitioner by
judgment and order dt. 30-7-97 directed the APSC to publish a list of remaining candidates to enable the Government fill up all the vacancies.
5. That the humble petitioner most respectfully state that the aforesaid
direction of the Hon’ble High Court to publish the list of candidates for remaining vacancies would tantamount to publish select list without advertising the vacancies would amount to denial of right to candidates who are eligible to apply after the earlier advertisement for 18 candidates and therefore would be violative of Article 14 of the constitution and would be against the settled law laid down by the Apex Court.’’
9. An additional affidavit was filed by the then Chairman of the Commission in
respect of the Review Application. The stand taken in the additional affidavit by the
Chairman is as follows:-
(a)……………..It is true that the Commission could not provide required assistance to this Hon’ble Court as it has failed to produce relevant records regarding the performance of the Writ Petitioners in the examination as there was a communication gap between the Learned Counsel of the Commission and the office of the Assam Public Service Commission. The Court in fact passed the impugned judgment on the basis of whatever records produce by the Learned Counsel, Assam Public Service Commission. The deponent believes that had the relevant records been produced before the Court at the time of hearing, the Court might not have passed the impugned judgement directing the Commission to publish the list for remaining 20 vacancies. (b) ………The Commission on 12-9-95 initially recommended the names of 19 candidates on the basis of their performance in the examination. On receipt of further request from Govt. on 25-10-93 the Commission recommended the names of all the candidates who secured at least the cut off marks in their respective categories for appointment. It may be mentioned that even after this flexible approach, the commission could recommend the names of only 6 candidates as none of the remaining candidates had scored the minimum cut off as mentioned above. (c)…………..This Court was pleased to hold that the petitioners are not below average as they have come out successfully in written examination and were allowed to appear in the interview / oral examination. However, the aforesaid contention of the petitioners were not true and the records will reveal that their performance in the entire interview was below average.’’
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10. On the basis of this Review Application on 29th September, 1999, this Court
gave the following direction:-
“ In that view of the matter, the judgement and order dated 30-7-97 is modified to the extent, that as per Government requisition and request / proposal, the Assam Public Service Commission shall select and recommend the candidates from the same select list subject to their performance in the interview in the same selection process so that those vacant posts can be filled up immediately.’’
11. Being aggrieved by this order, Writ Appeal No. 523/991 has been filed by the
Commission and Writ Appeal No. 400/99 has been filed by the writ petitioners.
12. We have head Mr. K.N. Chowdhury, Learned Senior Counsel, assisted by Mr.
T.C. Chutia, Learned Counsel for the Assam Public Service Commission and Mr.
A.K. Battacharyya, Learned Senior Counsel assisted by Mr. B.K. Singh, Learned
Counsel for the writ petitioners/ appellants. We have also heard Mrs. A. Hazarika,
Learned Counsel for the State of Assam.
13. Before we go to the other aspects of the matter, let us have a look at the
provisions of law with regard to the competitive examination and how the posts are to
be filled up by the Assam Public Service Commission. This matter is covered by the
Assam Public Service Commission (Limitation of Functions) Regulations, 1951. Part
II provides for recruitment by open competition and Rule 4(a) and (b) are quoted
below:-
“ 4. In the case of recruitment by competitive examination the Commission will send to the appointing authority a complete list of the marks obtained by each of the candidates and –
(a) if the appointing authority is the Government, the Secretary in the Department concerned shall submit without comment for the order of Government, the names of, or
(b) if the appointing authority is not Government, that authority shall appoint the candidates who obtain the highest marks upto the number of vacancies to be filled, or where recruitment is to be made from candidates belonging to Scheduled Castes, Scheduled tribes and Backward Classes, the candidates of each category who obtained the highest marks upto the number of vacancies to be filled from that category, provided that the Commission certifies that these candidates are fit for appointment.’’
There is a set of rules known as Assam Public Service Commission (Procedure
and Conduct of Business) Rules, 1986. Rule 41, 42,43,and 48 are quoted below:
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“ 41. When on each day after the interview is over and marks are awarded to each candidate the mark-sheet prepared shall be placed in sealed covers and will be kept by the Chairman. 42. The mark-sheets so obtained shall be opened on the last day of the interview or immediately thereafter and the marks of interview/ personality test in a competitive examination shall be added to the marks obtained by the candidate in the written examination. Thereafter on the basis of totals so obtained the merit list shall be prepared and placed before the Commission for final declaration of the result: Provided that the commission may with a view to eliminate variation in the marks awarded to candidate on any examination or interview adopt method, device or formula which they consider proper for the purpose.
43. After the results are declared by the Commission, a copy of the
same shall be placed in the Notice Board. A copy of the result will also be sent to the Press/ News papers with a request to publish the same. 48. Where multiple Boards are constituted by the envelopes containing the original mark-sheets of interview held by different Boards shall be sent to the Chairman/ Senior most member for preparation of results which shall be sent to all Members of the Boards for signature. The Private Secretary to the Chairman shall prepare the results.’’
14. No mark sheets were sent and even it was not produced before this Court,
though sufficient opportunity was given for it. Another aspect of the matter which
must be borne in mind is that we are exercising the powers of judicial review and in
exercising the powers of judicial review when we question the propriety / legality of a
decision of another constitutional body we must adopt a cautious and prudent
approach. We are not sitting on appeal over the decision of another constitutional
body. But in exercise of judicial review we must find out whether there is
transparence and adherence to the Rules or whether the decision making process is fair
and transparent one. We are not concerned with the decision. The founding fathers of
our Constitution have given that power or role to another body. But if it is found that
the decision making process itself is not valid and proper by adhering to Rules or it
does not inspire confidence of the people in the system, a Writ must step into stop
such a rot. If it is found that the Commission did not adhere to the Rules for its
guidance and in arriving at the decision, the action of the commission shall have to the
termed as arbitrary. The Rules are made to be adhered to so that the public cannot
question the honesty, fairness, transparency and the role of the Commission. Some
Rules are mandatory and some may be directory.
15. The founding fathers of the Indian Constitution rejected the ‘spoils system’,
under which the administration is carried on by civil servants appointed in
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consideration of their political service to the party in power. They realized that the
democratic system could be maintained only if the civil servants were appointed solely
on the basis of merit, by open competition and only if they could carry on the
administration independently, instead of blindly carrying out the orders of their
political superiors. It is for this that Commission is constituted as a constitutional
body. (See Constitution by Basu, 1999 Edition)
16. For the recruitment on the basis of merit, they provided for a Public service
commission at the Union as well as at the State level, which itself should be an
autonomous body; so that it could carry on its functions independently, fairly and
impartially, it should be constituted with men of high integrity and qualification.
17. If any authority is required, one can go through AIR 1981 SC 1777 (Lila Dhar,
Petitioner Vs. State of Rajasthan & Ors., Respondents) where the Supreme Court in
para pointed out as follows;
“ 4. The object of any process of selection for entry into a Public Service is to secure the best and the most suitable person for the job avoiding patronage and favouritism. Selection based on merit, tested impartially and objectively is the essential foundation of any useful and efficient public service. So, open competitive examination has come to be accepted almost universally as the gateway to public services. “ The ideal in recruitment is to do away with unfairness.’’ United Nations Handbook on civil Service Laws and Practice: “Competitive examinations were the answer to the twin problems represented by democracy and the requirement of good administration. They were the means by which equality of opportunity was to be united with efficiency………By this means favouitism was to be excluded and the goal of securing the best man for every job was to be achieved.’’ Public Administration by O.Gler Sthal. “ Open competitive examinations are a peculiarly democratic institution. Any qualified person may come forward. His relative competence for appointment is determined by a neutral disinterested body on the basis of objective evidence supplied by the candidate himself. No one has "pull", everyone stands on his own feet. The system is not only highly democratic, it is fair and equitable to every competitor. The same rules govern, the same procedures apply, the same yardstick is used to test competence.’’ Introduction to the study of Public Administration by Leonard White.’’
18. It is in this background that we must decide this case. Mr. Chowdhury,
Learned Advocate for the Assam Public Service Commission in Writ Appeal No.
523/99 makes the submission that as there is no wait listed candidate, the Commission
cannot adhere to the directions given by this Court and further with regard to the
request of the Government to recommend suitable candidates, there was no suitable
candidate as their performance was below the cut-marks. In support of his contention,
Mr Chowdhury placed reliance on the following decisions.
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State of Bihar and Another-Vs Madan Mohan Singh & Ors. reported in 1994
(3) SCC 308. That was a case where an advertisement was made to fill up 32
vacancies. Recommendation was made and 32 vacancies were filled up and the
Supreme Court pointed out that as the 32 vacancies were filled up, there cannot be any
further appointment from that select list as the list itself has been exhausted and the
selection process has ended. It was further pointed out that if the same list has to be
kept alive for the purpose of filling up of other vacancies, it would amount to
deprivation of rights or other candidates who would have become eligible subsequent
to the said advertisement and the selection process.
19. The next case relied upon by Mr. Chowdhury is Ashok Kumar & Ors. – Vs.
Chairman, Banking Service Recruitment Board and Ors., reported in (1996) 1 SCC
283 wherein the Supreme Court pointed out that Article 14 read with Article 16 (1) of
the Constitution enshrines fundamental right to every citizen to Claim consideration
for appointment to a post under the State. Therefore, vacant posts arising of expected
should be notified inviting applications from all eligible candidates to be considered
for their selection in accordance with their merit. The recruitment of the candidates in
excess of the notified vacancies is a denial and deprivation of the Constitutional right
under Article 14 read with Article 16 (1) of the Constitution. The procedure adopted,
therefore, in appointing the persons from the waiting list prepared by the respective
boards, though the vacancies had arisen subsequently without being notified for
recruitment, is unconstitutional. However, since the appointments have already been
made and none was impleaded, the Supreme Court did not interfere with these matters
adversely affecting their appointments.
20. The next case relied upon by Mr. Chouwdhury is Pradip Gogoi & Ors Vs.
State of Assam & Ors, reported in (1998) 8 SCC 726. This is a case of this Court and
a Division Bench of this Court laid down the law that no candidate in the waiting list
shall acquire a right to get appointment. As against that a SLP was filed before the
Apex Court and that was dismissed by the Apex Court holding as follows:
“2. Though Mr. Goswamy, learned counsel appearing for the petitioners is right in contending that opportunity should be given to such people and the petitioners too would have had also applied for appointment having considered their cases awaiting for such an appointment since their cases were tested by the Public Service Commission and kept in the waiting list, omission to appoint them affects their rights seriously under Article 16 (1) of the constitution. We cannot give a direction to consider their cases for appointment from the wait list. The sympathetic vibrations are also responsible for this sagging problem and moral degeneration. Under these
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circumstances, we are constrained not to accede to the persuasive request made by Mr. Goswamy. However, the authorities are directed to notify forthwith vacancies to the Public Service Commission and the Public Service Commission would take necessary expeditious action for recruitment and recommend the names to the authorities expeditiously, so that the existing vacancies would be filled up and the petitioners and all eligible candidates would also be eligible to apply.”
21. Another case relied upon by Mr. Choudhury is Madan Lal and Ors. Vs. State
of J & K & Ors., reported in (1995) SCC 486. That decision is also on the same
point that once notified vacancies are filled-up, there can be no further appointment
from the select list even if vacancies arise subsequently.
22. On the basis of these decisions of the Apex Court which are binding on us, we
accept the propositions of law as put forward by Mr. Choudhury. But the matter does
not end there. There are certain other murky facts as revealed from the records and we
want to have a bird’s eye view on these matters not to condemn the conduct of the
Commission but to strike a note of caution with hope and trust the Commission may
be more cautious and prudent in future. We are not touching the appointments already
made, as they are not parties before us and further almost 4 years have elapsed from
the date of appointment.
23. Mr. A.K. Battacharyya, learned Advocate for the appellants in writ appeal No.
400/99 strenuously contends that on earlier occasion record was produced before this
Court and this Court on examination of the record found that there was no select list.
Even that was the finding of the learned Single judge. Thereafter a Review
Application was filed wherein it was stated that there is a select list. The record which
now has been produced before this Court by the learned counsel for the APSC does
not show any selection proceeding. The selection proceeding and the mark sheets
should be maintained by the APSC according to its own rules and not only that when
the Commission sends recommendation to the government they must reflect the marks
obtained by each candidate. That is a mandate of Rule which we have quoted above.
The commission cannot recommend and send a list to the Government without mark
sheets. That is what bas been done here. A bare perusal of the records will show that
the list was published on 12-9-95 for 19 candidates and the matter was closed
thereafter as evident from the note sheet. How thereafter the matter was re-opened
with regard to that there is no note sheet. The next note is dated 27-2-96 which shows
the names of 25 candidates appointed. There is also no record to show that there was
selection for these 25 candidates by adhering to Rules. Further there is another
disturbing factor. The result was published on 12-9-95 by the Assistant Controller of
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Examination. In pursuance of the Rules it was never notified, it was not sent to the
press or to news papers which is requited under the law. On the same date the
Chairman of the Assam Public Service Commission on his own wrote a letter to the
government for appointment of 19 persons (though only 18 posts were advertised) and
though the vacancy position was 18 the government appointed 19 candidates and
thereafter names of another 6 persons were sent on 25th October, 1995. Selection
cannot be made by installments. There must be one Combined select list. Publication
of result must be once for the advertised posts. No waiting list is available in the
record produced before us and it is not known where from these 6 persons have been
picked up. Further in the result published by the Assistant Controller of Examination
appearing at page 93 for 6 candidates the date is cut both at the top as well as below
signature and that was shown to the learned counsel for the parties. Earliest to this
publication itself the then Chairmen of the Commission sent a letter to the
Government recommending 6 persons. The names were recommended by the
Chairmen on 21-10-95 but the result as seen from the record was published on 25-10-
95 for these 6 persons. That is something unthinkable. Not only that we have shown
the records to the learned counsel for both the parties and we have doubt regarding
select list dtd. 12-9-95. Of course, there is no material before us to establish that these
pages were inserted later on after the decision of the learned Single Judge. There is
doubt regarding the whole selection process, in the absence of selection proceeding or
mark sheets. Further, the note sheets maintained are like a mirror to a file maintained.
The note sheets are absolutely silent with regard to different stages.
24. We close the chapter here with the hope that things will improve and there will
not be any compliant to the effect that “ something is wrong in the State of Denmark’’.
It may be stated herein that in the Regulation which we have quoted above there is no
provision for wait list and that is why the provision for some few more names to be
added and it is really unfortunate that candidates are wait listed and somebody takes
advantage of it.
25. We dispose of the Writ Appeals as follows:
1) Writ Appeal No. 523/99 shall stand disposed of with a direction that there is no need for the commission to make recommendation as directed by the leaned Single Judge in the Review Applications.
2) Writ Appeal No. 400/99 shall stand disposed of with a direction that if the petitioners are entitled to the benefits of Rules 6 (4) and the proviso thereto of the Assam Finance Service Rules, 1963, that benefit shall be given to them as it will be really unjust and
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improper to deny the benefits to these persons if they really deserve promotion at the hands of the authority.
26. As we have found the whole selection process to be not fair and proper, we have
all sympathy for these candidates. But in view of our circumscribed power we cannot
give any direction for re-consideration of their cases. But they should receive justice
in the hands of the authority. The authority should try to wipe out injustice if any
caused to them. Even making a bold attempt to wipe out genuine tears of somebody is
justice. We also hope that the authority shall look to the aspect that 50% of the posts
are available by way promotion and that shall be strictly adhered to according to
Rules.
27. Before we part with the record we made it explicitly clear that the exercise we
have made about the affairs of the commission is not to erode the confidence of the
public in the august body but only to point out the loopholes. So that it may be
plugged in future. It is with anguish and pain that we have delved into it. We quote
here a famous line of Churchill. It is wrong not to lay the lessons of the pat before the
future.’’ To keep something below the carpet is not beneficial for the institution,
rather it should be the endeavour to remove the garbages. Though the selection made
by the commission is only recommendation and not binding on the Government, yet it
must be an unbiased advice as it affects the moral of Public Service. Public Service
Commission is an independent constitutional body. So it is entrusted a valuable and
far reaching important task of selecting personnel to whom shall be entrusted to
running the administration of the State. Density of the people very much depends on
the law and just decision of the commissions. Way back in 1954 the Supreme Court
pointed out that the Executive is to be manned by the cream of the society. The
Commission must Churn / separate this cream from the milk.
The records are returned to the learned counsel for the APSC.
***
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W.P.(C) No.1042/2002 & W.P.No(C)No.1933/2002 D.D. 13.6.2002
The Hon'ble Mr. Justice J.N.Sarma
Dr.Muhi Kanta Hazarika & Anr. - Petitioners Vs. State of Assam & Ors. - Respondents
Selection to the post of Director of Health Services, Assam
Recruitment advertisement prescribed qualification and experience not as per Assam Health Services Rules, 1995 – Hence selection made by P.S.C. as per the advertisement has been quashed with a direction to Government to lay down the qualifications and experience as required under the Rules and to hold selection afresh. Cases referred: 1. (1990) 3 SCC 655 District Collector & Chairman, Vizianagaram Social Welfare Residential School Society Vs. M.Tripura Sundari Devi 2. (1998) 3 SCC 381 Upen Chandra Gogoi Vs. State of Assam & Ors. JUDGMENT
Both these applications have been filed challenging the legality and validity
of the select list dated 29-12-2001 prepared by the Assam Public Service Commission
(hereinafter referred to APSC) and communicated by its Secretary by which Dr. Bipul
Ch. Goswami and Dr. Paresh Ch. Battachaarjee were selected to fill up the post of
Director of Health Service, Assam in pursuance to the advertisement dated 10-10-
2001. It may be stated that Dr. Bipul Ch Goswami was placed at SL.NO.1 in the select
list and Dr. Paresh Ch. Battaacharjee was placed at SL.NO.2 in the Select list. The
authority, however, after receiving the list came to a decision that Dr. Bipul Ch.
Goswami is not qualified to hold the post as he did not have the requisite experience
as per the advertisement and as such, the post is now being held by. Dr. Kalyan Das as
in-charge Director pursuant to an interim order of this Court.
2. The brief facts are as fallows:-
On 10-10-2001 an advertisement was issued to fill up the post of Director of
Health Services, Assam and the qualification mentioned were as fallows:-
“Qualification: Atleast M.B.B.S. Degree or an equivalent Degree of a
recognized University.
Experience (a) Atleast 4 (four) years practical and administrative experience
in the post of other Chief Medical and Health Officer or Additional Chief Medical and
Health Officer or combining both, the experience together or equivalent or in a higher
post.
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(b) Experience in Medical Public Health and Family Welfare works
(c) Preference will be given to the candidates having experience in
administering large Health Service Programmes including Family Welfare
programme and Hospital administration.
(d) A post graduate degree of diploma in Public Health will be treated as a
preferential qualification.
(e) Candidates must be from Health (A) Deptt. Only.
3. There is a set of Rules framed under Article 309 of the Constitution of India
and that Rules is known as Assam Health Services Rules, 1995 which came into effect
from the date of its publication in the official Gazette and it was published on 26th
September, 1996. Rule 6 of that Rules provides for direct recruitment. Rule 6 (1) is
as fallows:-
6(1) Direct recruitment to the cadre of Director of Health Service and also
in the cadre of M & HOI of the service shall be made by the Governor in accordance
with the procedure. The other part of the Rules namely 6 (1) (a), (b), (c), (d) and (e)
are with regard how to fill up the post by the Public Service Commission. Rule 7
provides for qualification for direct recruitment. Rule 8 (i) vides for academic
qualification. Rule 8 (ii) provides as follows:-
“ 8 (ii) Academic qualification of a candidate for direct recruitment for the post of the Director of Health Service shall be as prescribed by the Governor from time to time. The qualification and experience prescribed as on the date of commencement of those rules are given in Schedule-IV.’’ A bare look at Schedule-IV will show that it prescribes qualification only for Medical
& Health Officer and nothing has been prescribed with regard to Director. There is no
notification also in the name of the Governor prescribing the academic qualification
and experience. What the authority did in this was that after the selection was made
by the APSC on 4-2-2002 a note was put up by the commissioner and secretary,
Health to the Chief Secretary, Minister of Health and Chief Minister seeing their
approval. That note produced by Mr. B.P Bora, learned Sr. Govt. Advocate was
approved by the Chief Minister on 15-4-2002. That is quoted below:-
“Chief Secretary
Minister, Health
Chief Minister.
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The matter had been put up to seek approval of the Honorable CM for appointment of the Director of Health Service. In this connection, the Hon,ble CM has stated that he would like know the rule position. As per rule 5 of the Assam Health Service the recruitment to the post of DHS is to be done by direct recruitment through commission (APSC). The procedure for direct recruitment has also been given in rule 6 of the Assam Health Service Rules. The academic qualification and experience are normally prescribed by the Government from time to time. Accordingly, this time the qualification and experience was prescribed by the State Government which was similar to the prescription given in the previous 2 occasions. The prescribed qualification and experience is as given below:- Qualification:- At least MBBS degree or equivalent degree of a recognized university. Experience:
(a) At least 4 years administrative experience as Chief Medical & Health Officer or Addl. Chief Medical & Health Officer or combining both experience or experience in an equivalent or in a higher post. (b) Experience in Medical & Health and Public Family Welfare Works.
(c) Preference will be given to the candidates having
experience in administrating Health Service programmes including
family welfare programmes and Hospital administration.
(d) A post Graduate Degree or Diploma in Public Health will be treated as a preferential qualification. (e) The candidate must be from Health (A) only. The Government has followed procedure as prescribed in the rules and the APSC has given the recommendations. As already indicated in the note at page 119-121, the first person recommended by APSC does not fulfill the minimum criteria required for consideration. The officer does not have adequate experience at the appropriate level and hence his candidature cannot be accepted. The Government as per rule position has to make the appointment by direct recruitment through APSC. Since the APSC has given two names in order of merit and the Government is unable to accept the candidature of the number one nominee for very valid reasons there should be no bar in accepting the 2nd nomination. It is further suggested that the whole matter regarding issue of experience certificate by Dr. P.K. Deka, PD IPP IX to Dr. B.C. Goswami fraudulently should be inquired into by the vigilance through Anti-corruption Branch. C.S. may kindly obtain CM’s approval for taking up a vigilance case.
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Sd/- Commissioner & Secretary. Health Hon’ble Chief Minister, This is regarding appointment of Director, Health Service, Assam as per APSC’s select list. Hon’ble C.M. vide his order at page 121/N wanted to know the Rules position Commissioner & Secretary, Health was furnished the Rules position at office note from prepage. C.M. may kindly peruse the same and pass necessary order to appoint Dr. Paresh Battacharjee, the 2nd nominee for the post of Director Health Services. Regarding “X” above, explanation may be called from Dr. P.K Deka, P.D., Assam Area Project first for taking appropriate action. Submitted for approval. Sd/- Minister, Health Approved Sd/- C.M.
The note which has been quoted above will have bearing on the argument advanced by
the learned Advocate for the petitioners. From this it will be crystal clear that at the
time of issuing advertisement as quoted above there was no qualification prescribed by
the Government as required under the Rules with regard to academic qualification and
experience. It appears that the authority while issuing advertisement adopted its own
approach as yardstick and laid down the qualification and experience as was done in
the past. It further appears that the APSC also adopted a mechanical approach instead
of looking to the qualification as required to be prescribed it issued advertisement with
the qualification as suggested by Government. The commission adopted an approach
which cannot be accepted. The experience prescribed in the advertisement was of
Chief Medical and Health Officer or Additional Chief Medical and Health Officer or
Bearing both experience together or an equivalent or higher post Mr. Bipul Chandra
Goswami is MBBS and subsequently he also passed MD in Gynecology. Dr.
Goswami joined in the service as Assistant Surgeon on 18-10-73. He became Senior
Medical & Health Officer on 9-1-73. He became Superintendent of Civil Hospital
(rank of S.D.M. & H.O.) on 1-8-94. He was not promoted to the rank of Chief
Medical and Health Officer or Additional Chief Medical and Health Officer.
Thereafter, he went on deputation to Assam Area Project under Word bank and there
he was posted as Junior Consultant (HMD). That was a deputation vacancy and not a
cadre post as prescribed in the Rules. The post of Junior Consultant is not a cadre post
under Rule 3(iii) of the Rules of 1995. The cadre posts are provided in the Rules. The
learned Advocate for Mr. Goswami produces before me a set of Regulation framed by
the Society for implementation of Assam Area Project and in that regulation framed
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by the society it is provided that the post of Junior consultant (HMD) shall be
equivalent to Joint Director of Health Service of the State of Assam. The qualification
which is required to fill up the post of Junior Consultant is as follows:-
“ Any officer from Assam Health Service not below the rank of Joint Director/ Associate Professor/Asstt. Professor with at least 8 years experience in HMD Back ground in organizing training/ seminar atleast for 04 years or any officer holding an equivalent post under the State Government or a retired Government servant who has retired from services from a similar post.’’
So, even he was not qualified to be a Junior Consultant. Be that as it may, he was sent
on deputation. Now the question is that as he holds the post of Junior Consultant
whether that can be deemed to be equivalent to Joint Director of Health Services. An
equivalence made/ created by another body certainly shall not bind the Government to
make it equivalent to a post provided in its own cadre. In the cadre the post of Joint
Director is above the post of Chief Medical and Health Officer and Additional
Medical and Health Officer. But that equivalence has been created by a society and it
shall not give a person a right to claim that he is holding cadre posts. Before the
APSC a certificate was produced by the Govt. Advocate issued by the Project
Director, Assam Area Project which reads as follows:-
“ TO WHOM IT MAY CONCERN”
This is to certify that Dr. Bipul Chandra Goswami of Assam Health Service (A) is wording as Assam Area Project, Indian Population Project –IX since 5th February, 1997. The Assam Area Project IPP-IX. Lunching from 1994 is the World Bank funded project under department of Health and Family Welfare, Govt. of Assam and providing multi purpose health care and Family Welfare Services in the State of Assam including MCH Services. Dr. Goswami holding the post of Junior Consultant (HMD) which is equivalent to Jr. Director of Health Services, Assam. During tenure of his 4 years 9 months services, he look after training. IEC activities and logistic management field works. He is sincere, hard working and work satisfactory upto entire satisfaction of higher authorities.
He bears good moral character. I wish him success in life.
Sd/- Dr. P.K. Deka, Project Director, Assam Area Project IPP-IX.’’ It was on the basis of holding of this post and the certificate issued, this
officer PC Goswami claims to have the experience and accordingly he applied and his
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application was considered. It may be stated herein that during the pendency of this
writ application, this certificate has been withdrawn by the Project Director, Assam
Area Project stating that it was issued by mistake. So, the question is that whether Dr.
Goswami was qualified to apply and considered for the post in terms of the
advertisement. As will be sent from the facts stated above, he did not satisfy the
requirements of experience etc. as laid down in the advertisement and he was not
eligible to the considered for the post.
4. I have heard Mr. H. N. Sarma and Mr. A.M. Maxumdar, learned Advocates for
the writ petitioners. Sri C.K. Sarma Baruah, learned Advocates for the Respondent
No. 3, Dr. Bipul Ch. Goswami. Mr. T.C. Chutia, learned Advocates for APSC, Mr.
B.P.Bora, learned Sr. Govt. advocate for official respondents and Mr. B.K.Sharma,
learned Advocates for the Respondent No.4 Dr. P.C. Battacharyya.
5. The learned Counsel for the petitioners places reliance of two decisions to
argue that Dr. Goswami did not have the experience and his case was illegally
considered by the APSC. It is submitted by Mr. H. N. Sarma, learned Advocate for
Dr. Mani Ram Hazarika that if it would be known to him that the person, having lesser
experience than that mentioned in the advertisement could have been considered he
also would have been in a position to apply for the post. On the other hand, Mr.
B.K.Sharma points out that Dr. Ananda Narzary appeared in the interview but he
failed to qualify and now he cannot turn back and question the selection. It is the
further contention of Mr. B.K.Sharma that his client is the only candidate who fulfills
all the qualifications laid down in the advertisement and as such, he should be allowed
to enjoy the benefit of selection as decided by the Government. It is further submitted
by Mr. B.K.Sharma that when Rules are silent with regard to qualification and
experience, Government in its own wisdom by executive instruction or otherwise can
prescribe necessary qualification and experience. But the records produced by the
Govt. advocate do not show that any such decision was taken by the Government
before the requisition was sent to the APSC by the Govt. lying down qualification etc.
No doubt, in the rule earlier to 1995 qualifications were laid down, but in the present
rule, it is to be prescribed in the schedule and as indicated above, in the schedule the
qualifications have not been laid down. There was also no decision with regard to
qualifications etc. before issuing the advertisement.
6. Mr. H. N. Sarma, learned Advocate for the writ petitioner relies on two
decisions. (i) (1990) 3 SCC 655 (Direct Collector & Chairman, Vizianagaram Social
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Welfare Residential School Society Vs. M.Tripura Sundari Devi) where in paragraph
6 the law has been laid down as follows:-
“ It must further be realized by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications are circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice. We are afraid that the Tribunal lost sight of this fact.’’
That is what has happened in the instant case. Dr. Goswami was selected disregarding
the qualifications laid down in the advertisement and the Supreme Court further issued
a caveat stating that no court should be a party to the perpetuation of the fraudulent
practice. The next case relied on by Mr. Sarma is (1998) 3 SCC 381 (Upen Chandra
Gogoi Vs. State of Assam and Others). That was a case from Assam and there the
situation was more interesting. The person concerned drafted the Rules to suit
himself. There was a selection and that was challenged and a Division Bench of this
court quashed the selection and his appointment. In that particular case the Supreme
Court observed that even if the Rules which provides the qualifications at a later point
of time and validate the appointment of person, yet that rule cannot be applied to a
selection which was held at an earlier point of time and the Supreme Court pointed out
as follows:-
“Be that as it may, the subsequent Rule cannot affect the qualifications prescribed for the post of OSD under the advertisement of 18-6-85. The appellant was appointed pursuant to this advertisement. He had to meet the qualifications prescribed. The appellant has drawn our attention to Rule 38 of the Assam Legislative Assembly Secretariat Rules, 1986. Under which all orders made or actions taken before these rules came into force shall be deemed to have been made or taken as if these were made or taken under these rule. Rule 38 can apply only to orders lawfully made or action lawfully taken before these Rules came into force. It cannot validate an action which was not lawful at inception.”
The question which now shall arise is that whether the entire selection should be
scrapped and the matter should be sent back to the Government to laid down the
qualifications and experience as required under the Rules or we should uphold the
selection of Dr. Battacharjee. I have applied my mind to the factual matrix as well as
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to the law. I find it will be just and proper to scrap the entire selection and to send
back the matter to the Government to lay down the qualifications and experience as
required under the rules as indicated above and thereafter to hold the selection. In the
meantime, the Government may allow the continuance of the person holding the post
by virtue of the interim order of this court. If Government thinks otherwise, the
Government may deem fit and proper to give charge to another person who is senior
and better qualified to the person now holding the post. A person junior to the person
holding the post shall not be brought in during the interval as in charge of the post. It
is needles to say that Dr. Ananda Narzary who earlier failed to qualify in the interview
shall also be eligible to apply in terms of the fresh advertisement when issued. The
contention that the case of Dr. Ananda Narzary was not considered is not correct
inasmuch as the records produced by the learned Sr. Govt. advocate show that the
petitioner appeared in the interview conducted by the APSC, but he did not qualify in
the interview nor he had the experience as pointed by the Commission. It may be
stated herein that after Dr. Goswami now on expiry of deputation has been reverted
back to his parent department. Dr. Goswami now has been appointed as SDMO and
PHC in the office of the Joint Director of Dhubri which is a post below the rank of
Chief Medical and Health Officer or Additional Medical and Health Officer. It is
needless to say that whole process of selection shall be completed by the Government
within a period of three months.
Both the Writ applications are disposed of accordingly.
***
.
181
BIHAR PUBLIC SERVICE COMMISSION
182
SUPREME COURT OF INDIA Civil Appeal No.1397 of 2001
D.D. 21.2.2001 The Hon'ble Mr. Justice S.Rajendra Babu
The Hon'ble Mr. Justice S.N.Phukan Buddhi Nath Chaurdhary & Ors. … Appellants -vs- Abahi Kumar & Ors. … Respondents Selection of Motor Vehicles Inspectors made by Bihar Public Service Commission on the basis of qualification and experience as per the Recruitment Rules in 1989 was challenged by unsuccessful candidates on the ground that selected candidate did not possess the requisite qualification and experience. Bihar High Court directed the Transport Commissioner to verify whether the selected candidates (appellants) possess the required qualification and experience. In this Appeal the Supreme Court has deprecated the said direction of the High Court as under:
"We fail to understand as to how the matter of selection and appointment to a post could have been entrusted to the Transport Commissioner when the Commission had been specifically entrusted with such a job and such Commission, which is an autonomous authority having a constitutional status, has selected the candidates whose appointments were in challenge. If the selection of these candidates was improper the same should have been set aside with appropriate directions to redo the process of selection or at best, the High Court could have directed the Government, which is the appointing authority, to take appropriate steps in the matter."
The Supreme Court has found that all the applicants possess the requisite qualifications or equivalent qualification. For the lack of experience the Supreme Court considering the fact that appellants have worked more than 10 years after their appointment has held that the lack of experience is now made up. On equitable consideration following its earlier decisions in Ram Sarup vs. State of Haryana & Ors. 1979 (1) SCC 168 and other cases has held that the appointment of the applicants need not be disturbed. Cases referred:
1) Ram Sarup vs. State of Haryana & Ors. 1979 (1) SCC 168 2) District Collector & Chairman, Vizianagaram Social Welfare Residential
School Society, Viziangaram & Anr. Vs. M.Tripura Sundari Devi 1990 (3) SCC 655
3) H.C. Puttaswamy & Ors. Vs. The Hon'ble Chief Justice of Karnataka High Court, Bangalore & Ors. 1991 Supp. (2) SCC 421.
JUDGEMENT
Leave granted.
In these cases the appellants were selected by the Bihar Public Service
Commission [hereinafter referred to as 'Commission'] for appointment as Motor
Vehicle Inspectors pursuant to an advertisement issued by the Commission on
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12.05.1989. The advertisement indicated that candidates possessing the following
qualification and experience are eligible for appointment to the said post:
"Qualification":- (Required minimum technical qualification- educational qualification).
(Ka) Matriculation (Kha) Diploma in Automobile Engineering or Mechanical
Engineering after completing three years course would be necessary from a recognized Institution/Board/University.
(G) The diploma holder or post diploma holder in Automobile Engineering would be preferred.
Note:- Such candidates, who have mechanic level qualification related to Motor trade would not be competent.
Experience:- (Ka) For the candidates, who after completing three years
course of Automobile Engineering have obtained diploma, must possess three years practical experience in an Automobile Engineering Workshop registered under the Factories Act.
(Kha) Such candidates, who have obtained diploma in Mechanical Engineering after completing three years course compulsorily, must possess five years practical experience in an Automobile Engineering Institution registered under the Factories Act.
(Ga) Candidates having post diploma in Automobile Engineering compulsorily possess two years practical work experience in a workshop of Automobile Engineering institution registered under the Factories Act. ".
When the process of selection was pending, a new rule was introduced in
Recruitment Rules requiring the person to be selected as a Motor Vehicle Inspector to
possess a driving licence. Pursuant to the selection made by the Commission, the
appellants were appointed as Motor Vehicle Inspectors in the years 1991 and they
have continued to hold the said posts till date.
On the ground that the selected candidates do not possess the qualification of
experience in appointment in an appropriate automobile institution registered under
the Factories Act, 1948 or they did not possess driving licence, their appointments
were challenged by some of the candidates who were not selected in several writ
petitions. The learned Single Judge of the High Court who dealt with these writ
petitions did not examine the contentions raised on behalf of the writ petitioners in the
necessary detail with reference to each selected candidate but directed the Transport
Commissioner to do that exercise. On appeal, the Division Bench of the High court set
aside the report sent by the Transport Commissioner pursuant to the order made by the
learned Single Judge which was received during the pendency of the appeal and
directed fresh consideration of the matter by the Transport Commissioner.
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We fail to understand as to how the matter of selection and appointment to a
post could have been entrusted to the Transport Commissioner when the Commission
had been specifically entrusted with such a job and such Commission, which is an
autonomous authority having a constitutional status, has selected the candidates whose
appointments were in challenge. If the selection of these candidates was improper the
same should have been set aside with appropriate directions to redo the process of
selection or at best, the High Court could have directed the Government, which is the
appointing authority, to take appropriate steps in the matter. However, in the facts and
circumstances of this case, we need not dilate on this aspect nor do we need to
examine various elaborate contentions addressed by either side. Suffice to say that all
the selected candidates, who are in employment, except one, possess necessary
qualification and in regard to that one excepted candidate, it cannot be disputed that he
possesses equivalent qualification. Thus the dispute narrows down to one aspect, that
is, the selected candidates may not possess necessary experience which is now
required to be examined by the Transport Commissioner.
The selected candidates, who have been appointed, are now in employment as
Motor Vehicle Inspectors for over a decade. Now that they have worked in such posts
for a long time, necessarily they would have acquired the requisite experience. Lack
of experience, if any, at the time of recruitment is made good now. Therefore, the new
exercise ordered by the High Court will only lead to anomalous results. Since we are
disposing of these matters on equitable consideration, the learned counsel for the
contesting respondents submitted that their cases for appointment should also be
considered. It is not clear whether there is any vacancy for the post of Motor Vehicle
Inspectors. If that is so, unless any one or more of the selected candidates are
displaced, the cases of the contesting respondents cannot be considered. We think that
such adjustment is not feasible for practical reasons. We have extended equitable
considerations to such selected candidates who have worked in the post for a long
period, but the contesting respondents do not come in that class. The effect of our
conclusion is that appointments made long back pursuant to a selection need not be
disturbed. Such a view can be derived from several decision of this Court including
the decisions in Ram sarup Vs State of Haryana & Ors. 1979 (1) SCC 168; District
Collector & Chairman, Vizianagaram Social Welfare Residential School Society,
vizianagaram & anr. Vs. M. Tripura Sundari Devi, 1990 (3) SCC 655; and H.C.
Puttaswamy & Ors. Vs. The Hon'ble Chief Justice of Karnataka High Court,
Bangalore & Ors., 1991 Supp. (2) SCC 421. Therefore, we must let the matters lie
where they are.
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In the special features of this case, we set aside the order of the High Court and
dismiss the writ petitions. The appeals are, therefore allowed No costs.
***
186
GOA PUBLIC SERVICE COMMISSION
187
Goa Public Service Commission as per letter dated 18.7.2003 has informed
that there are no judgments relating to that Commission which have a bearing on the
role and functioning of the Commission. The relevant portion of the letter is extracted
below:
"This has reference to the "Compilation of Judgements", a task undertaken by your Commission.
As far as the Judgements pertaining to our Commission, the same were put in the experts hands for scrutiny. It has been opined by the experts that the Judgements in which though G.P.S.C. is a party, do not show any bearing on the role and functioning of the Commission. In most of the cases, G.P.S.C. is a proforma respondent and the reliefs have been claimed against the State Government. I am also told by the experts that in the couple of matters decisions of the G.P.S.C. have been discussed but the same appear to be on minor or technical issues.
Notwithstanding the opinion the copies thereof are being sent to your Commission for your scrutiny and compilation thereof, shortly."
Out of the copies of Judgements/Orders sent by Goa P.S.C. one
judgment in W.P.No.79/2001, set out below has been selected for compilation.
BOMBAY HIGH COURT Writ Petition No.79/2001
D.D. 18.4.2001
Hon'ble Mr. Justice B.H.Marlapalle Hon'ble Mr. Justice A.M.Khanwilkar
Shri Krishna G.Chote – Petitioner Vs. State of Goa & Ors. - Respondents Selection by P.S.C. for promotion to fill up the vacancies of Assistant Director of Agriculture from the cadre of Agricultural Officers – Post of Assistant Director of Agriculture is a selection post as per the Recruitment Rules of 1994 – Principle of seniority-cum-merit has been followed. There were 18 eligible Officers for 5 vacancies 15 Officers out of 18 were considered – Out of them 2 were graded as 'Outstanding', 7 were graded as 'Very good' – out of them 5 Officers graded as 'Outstanding' and 'Very good' were selected – Officer at Sl.No.12 graded as 'Very good' was selected against anticipated one vacancy – Petitioner who was graded 'Good' was not selected – The grievance of the petitioner was that the procedure followed was not correct and Respondent No.4 who was punished after holding disciplinary enquiry has been selected for promotion. Held – As 3 Officers who were graded as 'Very good' were not selected for promotion the petitioner who was graded 'Good' cannot have any grievance. Respondent No.4 has been only 'censured' which is a minor penalty which does not come in the way of an Officer for being considered for promotion to the higher post.
188
JUDGMENT
Heard Mr. Bhise learned counsel for the petitioner, who is presently working
as Agriculture Officer in the office of Directorate of Agriculture, State of Goa and he
claims that he is eligible for being considered for promotion to the post of Assistant
Director of Agriculture. He has challenged the order dated 17th October, 2000, by
which five officers came to be promoted to the posts of Assistant Director of
Agriculture by the State Government and the petitioner was not considered for the said
promotion, though he was eligible. The Respondent no.2 has filed an affidavit in reply
and stated that the post of Assistant Director of Agriculture is a selection post as per
the Recruitment Rules of 1994 and it is required to be filled in by promotion, failing
which by transfer on deputation and if a suitable officer is not available within any of
these sources, the said post is required to be filled in by direct recruitment. There
were in al six vacancies. For the year 1991 there was one vacancy and for the year
2000 there were five vacancies. There were in all 18 eligible officers and their
Confidential Reports along with the records were placed before the Goa Public
Service Commission. The Goa Public Service Commission convened its departmental
promotion meeting on 19th September, 2000 and considered the cases of 15 officers
out of the list of 18 officers which was forwarded and after considering the service
record as well as the grading given by the D.P.C. six officers were recommended for
promotion to the post of Assistant Director of Agriculture. Mr. Lad, respondent No.4,
came to be selected against a vacancy which arose for the year 1999 and respondents
no.5 to 8 were selected against four vacancies for the year 2000, whereas the officer at
serial no.12 was selected against the fifth anticipated vacancy and was kept on the
waiting list. As per the recommendations of the D.P.C. the impugned order came to
be issued promoting five officers i.e. respondents no.4 to 8. The claim of the petitioner
was considered along with 15 officers and the D.P.C. did not find him suitable for
being promoted to the post of Assistant Director. It has also been stated that
respondent no.4 is no more in the services of the State Government as he has taken
voluntary retirement with effect from 14th February 2001 and as at present, there is no
vacancy for the post of Assistant Director of Agriculture.
2. Mr. Bhise, learned counsel for the petitioner submitted that the service record
of respondent no.4 was not satisfactory and inspite of directions given by this Court in
Writ Petition No.47/98 to initiate disciplinary proceedings against him, the D.P.C.
considered his case and finally he was promoted. It is also submitted by the petitioner
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that the Select List has not been made properly and the selection ought to have been
made on the basis of seniority.
3. If as per the Recruitment Rules of 1994, the post of Assistant Director of
Agriculture is a selection post, the principle of seniority-cum-merit will have to be
followed as is well established by a catena of judgments. Seniority list cannot be the
criterion for promotion to the post of a Gazetted Officer and the Goa Public Service
Commission has considered these aspects. The D.P.C. has gone through the service
records of all the eligible officers whose names were forwarded and has done the
grading in respect of each of these officers. The learned Advocate General has placed
before us the minutes of the D.P.C. and it is noted that the bench marked for
promotion was "good" whereas there are officers who have been rated as
"outstanding", "very good", "good" and "average". Out of 15 officers considered by
the D.P.C., the officers at Sr.Nos.8 and 12 were rated as "outstanding", whereas the
officers at sr.Nos.1, 5, 6, 7, 10, 13 and 14, have been rated as "very good". The
petitioner's name appears at sr.no.4 of the said list and he has been rated as "good".
The D.P.C. as is evident from the minutes, has followed the proper procedure and
considered the officers for promotion on the basis of the gradings. It is also clear from
the said minutes that the petitioner's case was considered and though he satisfied the
bench mark requirement, the officers who have been promoted have been rated as
"very good", or "outstanding" and in fact, there are still three officers who have been
rated as "very good", waiting for promotion to the posts of Assistant Director.
4. So far as the allegations against the promotion of respondent no.4 are
concerned, it has been clarified in the affidavit in reply that pursuant to the directions
given by this Court in Writ Petition No.47/98, the disciplinary proceedings were
conducted and on the basis of the report submitted, the State Government has
punished the officer concerned by effecting recovery of excess amount paid under the
time bound promotion scheme to Shri Bablo Gadi, Digambar S. Joshi and Ramakant
A.Parab in terms of Rule 11(9) of CCS (CCA) Conduct Rules, 1965. In addition, the
respondent no.4 has been censured, which is a minor penalty. Admittedly, minor
penalty does not come in the way of an Officer for being considered for promotion to
the higher post. We, therefore, do not find any merit in the challenge raised to the
promotion of respondent no.4, who is admittedly no more in service from 14th
February, 2001. Even otherwise, there are three more officers who have rated as "very
good" and the petitioner does not stand a chance so far as the select panel made by the
D.P.C. held on 19th September, 2000. It is also stated across the Bar that the select
panel prepared by the D.P.C. at the instance of the Goa Public Service Commission is
190
no more in force and for the ensuing vacancies a fresh exercise will be carried out as
per the Recruitment Rules. The fact remains that as at present there is no vacancy for
the post of Assistant Director of Agriculture as has been stated in the affidavit in reply.
Mr. Bhise, learned counsel for the petitioner submitted that the Department must
prepare a select list every year irrespective of the vacancies for the post of Assistant
Director. These submissions do not commend to us.
5. Under the circumstances, we do not find any merit in the challenge raised
against the order of promotion dated 17th October, 2000 and the petition is, therefore,
rejected summarily.
***
191
GUJARAT PUBLIC SERVICE COMMISSION
192
GUJARAT HIGH COURT S.C.A.Nos. 478 and 613 to 622/1990 and connected cases
D.D. 17.7.2001
Hon'ble Mr. Justice M.R.Challa Hon'ble Mr. Justice N.G.Nandi
D.G.Dalal & Others – Petitioners Vs. State of Gujarat - Respondent
Interpretation of Rule 9 of the Gujarat Civil Services Recruitment (Examination) Rules, 1980 – Regarding allotment of posts under Class-I and Class-II to the selected candidates – The last part of Rule 9 "If a candidate refuses to join the appointment in the post offered to him, his name shall be deleted from the list of qualified candidates. Similarly, no request for change of the allotment of post shall be considered by the Government at any time after the allotment" is challenged. The High Court has upheld the validity of Rule 9 by following the decision in AIR 1998 SC 680 and other decisions of the Supreme Court by observing as under:
"…………….. declare that Rule 9 is valid but the interpretation of the Rule, as has been applied by the Government in the matter of selected candidates not joining the post is wrong and the vacancies are to be utilized in accordance with merit list and whether a request for change of allotment of post by itself is entertained or not, the Government of its own is under an obligation to utilize these vacancies keeping in view the merit list. In any case, the merit should not be made a casualty. Therefore, we uphold the validity of Rule 9."
The High Court following the decision AIR 1968 SC 346 State of Mysore v. S.R.Jayaram has held that the Government has been operating the Rule wrongly and set right the irregularities committed by the Government.
ORDER
Through these 16 Special Civil Applications, the petitioners have sought to
challenge the allotment of posts made to the concerned respondents of no allotment
and the method of allotment or assignment of preference in the Gujarat Civil Services
and have sought a direction for allotment afresh of re-allotment on the vacant posts
and for that purpose, Rule 9 of the Gujarat Civil Services Recruitment (Examination)
Rules, 1980 has also been challenged in Special Civil Applications Nos. 931 of 1992,
5705 of 1996, and 3590 of 1990 to be ultra vires of Articles 14 and 16 of the
Constitution of India.
2. It may be mentioned that in Special Civil Applications Nos. 3597 of 1990,
5705 of 1996, 1662 of 1989 and 931 of 1992, there is no challenge to the allotment in
favour of the concerned respondents, but the petitioners therein have claimed the post
of their preference only.
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3. During the course of hearing of these petitions on 29th June 2001, Mr. P.V.
Hathi, learned Counsel for the petitioners submitted a statement prepared on the basis
of the instruction received from the respective petitioners whom he represents. As per
this statement, the petitioner in Special Civil Application No.478 of 1990 of 1990,
namely, Mr. D.G. Dalal and the petitioner in Special Civil Application No. 614 of
1990, namely Mr. Haresh Darji who were allotted to Class-II post of Assistant District
Registrars in the year 1990 have already been promoted to Class-I post of District
Registrar in Gujarat Co-operative Service and they are therefore, not interested in
getting their, original allotment changed. They are, therefore, not interested in
prosecuting the petitions referred to above and hence, both these petitions are required
to be rejected as not pressed and the Rule issued therein is hereby discharged with no
order as to costs.
4. Thus, only 14 Special Civil Applications, i.e., other than Special Civil
Applications Nos. 478 of 1990 and 614 of 1990 remain for our consideration.
5. In the first group, i.e., Special Civil Applications Nos. 613,615 to 622 of
1990 in which the petitioners are represented by Mr. Hathi, a common advertisement
dated 1st October 1985 was issued by the Gujarat Public Service Commission (which
will be hereinafter referred to as "the Commission") for filling up of 101 Class-I posts
and 188 Class-II posts with different designations. Through this advertisement,
applications were invited from eligible candidates as per the respective recruitment
Rules. The last date for submission of the applications was 31st December 1985. Out
of the vacancies which were advertised through this advertisement, the reserved posts
were separately shown. The candidates seeking these posts were required to shown
their order of preference in the application and were required to appear in the
combined competitive examination to be held for Class-I and Class-II posts under the
Gujarat Civil Services Recruitment (Examination) Rules, 1980 framed in exercise of
the powers conferred by the provision to Article 32 of Constitution of India read with
the order by the President published in Govt. of India Gazette, Ministry of Home
Affairs, dated 17th February 1980 and in super session of all orders on the subject that
may be in force. The petitioners had applied in response to the aforesaid advertisement
inviting applications indicating their preference for different posts. It was a combined
selection for Category-I and Category-II posts in Gujarat State. As per Schedule-I,
Rule 2(E3), the posts in Category –I are as under:
1. Posts under Gujarat Administrative Services.
2. District Registrars of Co-operative Societies.
194
3. Superintendents of prohibition and Excise, Class-I
4. Deputy Superintendents of Police.
Posts in Category –II are as under:
1. Mamlatdars.
2. District Inspectors of Land Records.
3. Assistant Registrar of Co-operative Societies.
4. Sales Tax Officers.
5. Government Labour Officers.
6. Taluka Development officers or Block Development officers.
7. Superintendents of prohibition and Excise, Class-II.
8. Section Officers in Secretariat Departments and Allied Offices.
9. Deleted.
The Commission conducted the written examination in two parts. The examination
for the first part was held in June 1986 and the examination for the second part was
held in September 1987. The petitioners passed both these examinations and were
then called for viva-voce (oral interview) which was held between March and June
1988.on the basis of this selection, the Commission prepared the merit list, both for
general seats and reserved seats for Category-I and Category-II posts and also
prepared separate waiting list for Class-II posts. It may be mentioned that the list
which was prepared for Category –II posts was treated as waiting list for Category-I
posts. Thus, in all, there were three lists, the Category-I list, Category-II list which is
also the waiting list for the Category –I and the waiting list for the posts of Category-
II. The names of the petitioners stood at different positions at Sr. No. 128, 129 to 135,
140, 143 and 145A in the list of candidates selected for different posts under
Category-II. The break-up of the posts in Category-II as has been given out by the
petitioners is as under.
Section Officer : 78 Sales Tax Officer : 42 Mamlatdar : 27 Taluka Development Officer : 13 Govt. Labour Officer : 14 Assistant District Registrar Co-operative Societies : 10 District Inspector of Land Records : 4
According to the procedure, the concerned Department in the Secretariat is required to
intimate the General Administration Department its requirement of new recruits and
the General Administration Department, in turn, to communicate the same to the
Commission and thereupon the Commission is required to notify its intention to hold
the examination. A candidate who desires to compete for more than one of the
scheduled posts is required to submit a single application and he has to express his
195
desire to compete for any or all of the posts in the specified categories by tick marking
the boxes in the application form for which he wishes to be considered and to state the
order of preference by figures viz. 1,2,3, and so on. On the basis of the examination
held in part-I and part-II plus part-III i.e. viva voce and personality test, the
Commission is required to fix the qualifying aggregate marks to be obtained by the
candidate in the combined competitive examination. In the instant case, the written
examinations were held in the year 1986-87, Interviews were held in the middle of the
year 1988 and the merit list was prepared and submitted to the Government in the
month of November 1988. The process of allotment of posts and appointments to be
made was take up by the General Administration Department after the submission of
the two merit lists, under the Government Resolution dated 11th December 1986. This
Government Resolution dated 11th December 1986 laying down the principles and
guidelines for appointment of SC/ST and such other candidates to be considered for
appointment on general seats was subjected to challenge in Special Civil Application
No. 6691 of 1987 but the challenge failed. Accordingly, the list which was prepared
by the Commission on the basis of the principles contained in the said Government
Resolution dated 11th December 1986 remained to be a valid list in operation. The
petitioners were selected for Category-II posts while the name of respondent No.3 was
shown at Sr. 87 of the merit list for Category-I posts and the names of respondents
Nos. 4 and 5 were shown at Sr. No. 127 and 142 for Category-I posts of the same
merit list for Category-II posts and all of them were recommended for reserved posts
for SC candidates.
6. So far as the allotment of the posts based on merit under Category-I and
Category-II is concerned, there is no dispute. However, the dispute arises if a vacancy
becomes available on account of somebody not joining or not availing the
appointment in Category-I who had not been made any allotment earlier. In such
cases the course of action which has been adopted is to operate the waiting list for
giving appointments in the Category-II posts and the candidates who have already
been allotted some preference as per their merit in the first instance itself are not
considered for such vacancy even if they held a higher merit position in comparison to
those who are there in the waiting list. It is this procedure which has given rise to the
filing of the present petitions. To illustrate the grievance, it has been appointed out
that in case a candidate who is allotted to the post of Section Officer does not join or
refuse to accept the allotment, such vacant post of Section Officer goes to a candidate
from the waiting list even if he has a lesser merit and who is at a lower position and
the said post of Section Officer is denied to a candidate of higher merit in the main
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select list of Category-II. In the instant case, the preferences were allotted to the
petitioners in this group of Special Civil Applications as under:
Shri P.L Panchal Merit List No. : 128 Allotted Post : GLO(5th preference) Preferences : SO STO Mamlatdar TDO GLO Shri J.D. Dave Merit List No. : 129 Allotted Post : ADR (5th preference) Preferences : SO STO Mamlatdar DLR ADR Shri N.K. Ambaliya Merit List No. : 130 Allotted Post : GLO(5th preference) Preferences : SO Mamlatdar TDO STO
GLO ADR
Shri Ashwin Trivedi Merit List No. : 131 Allotted Post : ADR(4th preference) Preferences : SO STO Mamlatdar ADR Shri Dilip Soni Merit List No. : 134 Allotted Post : GLO(4th preference) Preferences : SO Mamlatdar STO GLO Shri R.R. Vaghasia Merit List No. : 135 Allotted Post : ADR(5th preference) Preferences : Mamlatdar TDO STO SO ADR Shri Haresh Darji Merit List No. : 137 Allotted Post : ADR(5th preference) Preferences : STO TDO Mamlatdar SO
197
ADR Shri K.G. Shah Merit List No. : 140 Allotted Post : GLO(5th preference) Preferences : Mamlatdar STO
TDO SO TDO GLO Shri Suresh Paddharja Merit List No. : 143 Allotted Post : GLO(6th preference) Preferences : SO Mamlatdar STO
TDO ADR
GLO Shri M.F. Joshi Merit List No. : 145-A Allotted Post : GLO(4th preference) Preferences : Mamlatdar STO ADR GLO
TDO SO It is the case of the petitioners that several posts of Section Officers, Sales Tax
Officers and Mamlatdars remained unutilised because the candidates to whom the
allotment had been made did not join. According to the petitioners, out of 78 posts of
Sales Tax Officers, only 68 had joined and about 10 posts remained vacant. Similarly,
against 42 posts of Sales Tax Officers and 27 posts of Mamlatdars, only 34 and 13
candidates respectively had joined, leaving 8 and 14 vacancies being available. These
vacancies were utilised for candidates belonging to the waiting list although the
petitioners held higher merit and they could be allotted and appointed on these posts as
per their higher preference at Sr. Nos. 1 and 2. Several posts in Category-I also
remained vacant and unutilised and allotment of candidates to Category-II posts was
altered and these posts were made available for Category-II candidates who were
lower in the merit list. The break-up of the total number of advertised posts category-
wise, total number of posts allotted, number of posts which were resumed ad umber of
posts allotted, number of posts which were resumed and number of posts which
remained vacant is reproduced as under as has been given in the statement at
Annexure F at page 54 of the paper book in Special Civil Application No. 478 of 1990
which was chosen by the parties for the purpose of reference to the pleadings and
arguments although at the end of the arguments this petition was got rejected as not
pressed.
198
Sr. No. Category Posts
Total Posts adver-
Total Posts
allotted
No. of Posts
resumed
No. of vacant
CLASS –I TOTAL POSTS : 101
1. GASI 78 78 68 10
2. Dy. S.P. 17 16 16 2 -
3. Dist. Registrar 6 5 4 2
Total 101 99 87 14
CLASS II TOTAL POSTS : 188
1. Section Officer 78 78 60 18
3 ST not
allotted 1 SC appointed through
2. Sales Tax Officer 42 42 34 8
3. Mamlatdar 27 27 13 14
4. Asst. Dist. Registrar 10 8 6 4
1 post SC/ST
Dist Inspector Land not allotted
5. Records 4 3
1 post SC not allotted
6. Taluka Development Officer
13 13
7.
Govt. Labour Officer
1 Post SC
not allotted
14 13 8 6
Total 188 184 121 50
MERIT LIST OF CLASS-II
1. For Mamlatdar Upto Sr. No. 37
2. For Section Officer Upto Sr. No. 116
3. For Sales Tax Officer Upto Sr. No. 127
7. On the aforesaid premises, a prayer has been made for declaring Rule 9 of the
Gujarat Civil Services Recruitment (Examination) Rules, 1980 to be unconstitutional
ad a declaration has been sought that the allotments of posts made to the concerned
respondents be declared to be illegal and contrary to the Rules and in alternative the
State Government be directed to make fresh allotment or re-allotments on the vacant
posts of Section Officer, Mamlatdar and Sales Tax Officer in accordance with the
preference shown by the petitioners and to direct the respondent State Government to
make fresh allotments to various posts including one post of District Registrar from
the merit list dated 30th November 1988 strictly in accordance with the
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recommendations made by the Commission and issue appointment orders in
accordance with the revised allotment.
8. An affidavit-in-reply dated 15th February 1990 was filed on behalf of the
respondents nos. 6 to 15 and an affidavit-in-reply dated 22nd July 1991 was filed by
the Under Secretary to the Govt. of Gujarat in General Administration Department
seeking to traverse the claim of the petitioners. In the reply, strong reliance has been
placed upon Rule 9 of the Gujarat Civil Services Recruitment (Examination) Rules,
1980 and it has been pleaded that:
(i) A candidate who desires to complete for any or all of the Categories of posts is required to tick the box in the application form against the post for which he wished to be considered and inside the box state the order of preference of figures 1,2 and 3 and so on.
(ii) No addition or change in the order of preference is
allowed by the Commission at any time once the application is submitted.
(iii) Having regard to his writing in the order of merit and the
number of vacancies available, the consideration is given as far as feasible to his preference when the appointment is made by the Government.
(iv) If any candidate refuses to join the appointment on the
post offered to him, his name is deleted from the names of the qualified candidates.
(v) No request for change in the allotment of posts is
considered by the Government any time after the allotment.
9. In para 17 of the affidavit-in-reply dated 22nd July 1991 filed on behalf of the
respondent no.1, while replying to para 14 of the Special Civil Application, while
denying the averments of the petitioner, it has been stated that the Government has
followed the provisions laid down under GCSR (Exam) Rules, 1980 in the matter of
appointment and there is no provision under Rule 9 regarding re-allotment of the
candidates whenever their first, second etc., preference post falls vacant. Rule 9 is
sought to be defended by saying that it provides for freedom for expressing preference
at the time of applying for the post and the Rules for not laying such change
afterwards is a part of reasonable restriction necessary for viable administration of
Rules.
200
10. On behalf of the petitioners, an affidavit-in-rejoinder dated 20th August 1991
was filed by one of the petitioners namely, Shri P.L. Panchal (in Special Civil
Application No. 478 of 1990 which was filed by Shri. D.G.Pirzada). A further
affidavit-in-reply dated 1st March 1994 is also on record as was filed by the Deputy
Secretary to the Govt. of Gujarat, General Administration Department and an
affidavit-in-reply dated 4th April 1990 on behalf of the respondent No.3 and a further
affidavit-in rejoinder dated 2nd march 1994 were filed in Special Civil Application No.
478 of 1990.
11. From the pleadings, so far as the factual aspects of the matter is concerned, it is
clearly established that the vacancies which became available on account of any
candidate's not joining have been made use of for the candidates of lower merit having
their rank in the waiting list and the question which we are called upon to consider is
as to whether it is to whether it is permissible in accordance with Rules as they exist
and as to whether it is justified or does not offend any provisions of the constitution,
validity and in that context, we are first required to consider the validity of Rule 9,
Rule 9, as it stood under the State Civil Services Recruitment (Examination)Rules,
1969 is concerned, the same is as under:-
"A candidate who desires to compete for more than one of the scheduled posts may submit a single application for all such posts indicating clearly in the application, in order of preference, the posts for which he wishes to be considered. A single application fee shall be payable with the applicant and, on admission to the examination also a single examination fee shall be payable".
The Government of Gujarat in exercise of powers conferred by the provision to
Article 309 of the Constitution of India read with the order of the President and in
super session of all orders on the subject that may be in force, made Rules known as
Gujarat Civil Services Recruitment (Examination) Rules, 1980 vide Notification dated
01.04.80 issued by General Administration Department Rule 9 in these Rules of 1980
is as under:-
"9 A candidate who desires to compete for any or all the categories of posts shall be required to tick the box in the application form against the posts for which he wishes to be considered and inside the box state the order of preference for that post by figures viz. 1,2,3, and so on. If he does not desire to be considered for any of the categories of posts he shall be required to write 'X' in box against the name of that post, but no box shall be left blank. He will not be considered for the post if the box against such post is left blank. No addition of change in the order of preference shall be allowed by the Commission, at any time, once application is submitted. Having regard to his rank in the order of merit and the number of vacancies available, consideration may be given as far as feasible to his preference when making appointment by Government. The appointment to various posts shall also be governed by the recruitment rules in force as applicable
201
to the respective posts at the time of appointment. If a candidate refuses to join the appointment in the post offered to him, his name shall deleted from the list of qualified candidates. Similarly, no request for change in the allotment of post shall be considered by Government at any time after the allotment".
12. It is the validity of this rule 9 which has been challenged in these petitions. The
last part of the Rule "If a candidate refuses to join the appointment in the post offered
to him, his name shall be deleted from the list of qualified candidates. Similarly, no
request for change in the allotment of post of post shall be considered by Government
at any time after the allotment" is challenged. The result is that when a selected
candidate refuses to join the appointment on the post offered to him, his name is
deleted from the list of qualified candidates and similarly the request for change in the
allotment of post is not considered by the Government at any time after the allotment.
The validity of this part of Rule is challenged on the ground that when no request for
change of allotment of post is entertained, the Government utilises the vacancy, which
has become available on account of non joining for giving appointment to less
meritorious candidate than those who had already been given allotment earlier and
thereby persons of higher merit, who are not able to get the appointment on the post of
their first preference stands denied and the candidate with lower merit, who could not
be given any allotment earlier, gets the post which becomes available on account of
non availability of selected candidate and that post may be a post of first preference of
those who have bee meritorious candidates their chance and candidates of lower merit
gets the benefit of their first preference. There is no dispute that this is how the
Government has been operating these Rules and the interpretation of these Rules,
which has been taken by the Government, has also been sought to be defended by
stating that in such cases if the allotments are changed with the availability of
vacancies, it will cause great administrative inconvenience. However, we find that
this interpretation, as has been taken, does not advance the object sought to be
achieved by the Scheme of the Rules so as to make available first preference to the
candidate with lower merit and deny the first preference to the higher merit.
According to us this interpretation of Rule 9, is not the correct interpretation of the
Rule. The intention of the Rule is that the request for change in allotment of post is
not to be considered, that does not mean and does not absolve the Government from
following the order of merit as and when vacancy becomes available on account of
any selected candidate not joining the appointment on the post offered to him. Strictly
speaking, it will not be a case of change of preference. The Government may or may
not entertain such request. The question is that the Government itself is under an
obligation to make use of such vacancy in a reasonable manner so that the merit is
protected. If the rule is interpreted in such a manner that it deprives higher merit, such
202
interpretation of Rule cannot be countenanced. According to the principles of
interpretation of Statute any Rule is to be interpreted so as to save its validity and that
is the principle of harmonious construction, which must apply with full force while
considering the validity of any rule. The question is as to whether the Government is
under any duty under these rules to follow merit when such vacancy becomes
available or not, notwithstanding the fact a to whether any request for change in the
allotment of post is entertained or not. Government may not entertain any such
request but it is the duty of the Government itself as to make use of such a vacancy by
following the merit and in doing so if there is any change in the allotment of the post
in favour of a more meritorious candidate or a candidate with higher merit, such
change in the allotment is not found to be for bidden under the Scheme of Rule 9
itself. No rule can be struck down merely because it has been wrongly interpreted by
the Government so as to defeat the object of advancing the cause of higher merit.
Therefore, while we do not approve of the interpretation of this Rule, as has been done
by the Government and we reject this interpretation, we find that on correct
interpretation of Rule, there is no question of holding this Rule to be valid merely
because it has been wrongly applied by Government. Rule 9 is in conformity with the
provisions of Article 14 and 16 of the constitution of India and the challenge to the
validity of Rule, as has been applied by the Government in the matter of filling the
vacancies, which become available on account of selected candidates not joining the
post is wrong and the vacancies are not to be utilised in accordance with merit list and
whether a request for change of allotment of post by itself is entertained to utilise these
vacancies keeping in view the merit list. In any case, the merit should not be made a
casualty. Therefore, we uphold the validity of Rule 9.
13. While considering the validity of Rule 9, as aforesaid, we have kept in view
the principles laid down in the cases decided by the Supreme Court which were cited
before us as under:-
(a) AIR 1963 SC 591 (Khandige Sham Bhar V. Agricultural Income-tax officer).
(b) AIR 1993 SC 1947 (Venkateshwara Theatre V. State of Andhra Pradesh).
(c) AIR 1980 SC 2056 (Kamal Kanti Dutta V. Union of India).
(d) AIR 1986 SC 1205 (Municipal Corporation, Ahmedabad V. Jan Mohammed) relying upon AIR 1980 SC 2056 Paras 38,58,67.
(e) AIR 1981 SC 1922 (K.P. Varghese V. Income Tax Officer, Ernakulam) PAra
11 at Page 1932.
(f) AIR 1984 SC 1543 (Maharashtra S.B.O.S. & H.S. Education V. Paritosh) Para 16,21,22 at page 1551.
(g) JT 1996 (3) SC 679 (State of Andhra Pradesh V. Mc Dowell and Co.) Para 45, Page 702.
203
(h) AIR 1993 SC 978 (R.L. Bansal V. Union of India).
(i) AIR 1993 Delhi 40 (Sandhya Kabra V. University of Delhi)Para 43 at Page 49 (Full Bench) (AIR 1971 SC 1439 had been referred).
(j) AIR 1994 Delhi 108 (Dr. Veena Gupta V. University of Delhi) FB Para 11.
(k) AIR 2000 Allahabad 191 (Dr. Naveen Jamval V. Dr. Arvind Kumar Kenkane) Division Bench Para 13.
(l) AIR 1998 SC 680 (Rajiv Mittal V. Maharshi Dayanand University).
(m) AIR 1989 SC 711 (Union of India V. MVVS Murthy) Para 5.
(n) AIR 1997 SC 2643 at page 2644-2645(state of Bihar V. Kaushal Kishore Singh) .
Justice M.B. Shah's order dated 24.11.98 in
Special Civil Application NO. 388/97
Special Civil Application No. 34286 decided on 05.02.86 by Justice Gheewala.
No.5 in the waiting list at Page No.5. So far as select list of Class-II post is concerned,
both of them were shown in the merit list, petitioner No.1 at No. 66 and petitioner
No.2 at No.5. They were in fact shown in the waiting list for Class-I post and for
Class-II post they have been shown in the merit list.
16. Both these petitioners wanted to change their preferences given by them in
relation to type of posts so far as Class-II posts are concerned. Petitioner No.1 wanted
to delete the preference given by him to the post of Section Officer. In other words,
his 2nd preference given to the post of Sales Tax Officer would become his 1st
preference. So far as petitioner No.2 is concerned, he wanted to delete his preference
given to the post of Section Officer as 1st preference and Sales Tax Officer as 2nd
preference. In other words, his preference to the post of Mamlatdar would become 1st
preference. The preference they wanted to delete to delete is not claimed and they
want to forego their rights for those posts of preferences as stated in Para 7 of the
petition. Barring this deletion everything as usual in tact in class-II post. So far as
class-I posts are concerned, there was no change at all. Petitioner No.1 also wrote to
the Government by letter dated 26th May 1989 indicating his desire for deleting 1st
preference. He also wrote to respondent No.2 Commission on 23rd of January 1989.
Petitioner No.2 also requested for such change and indicated his desire to delete his
preference by his application dated 15th of June 1989 and he had also sent the
application which was sent to the name of D.G. Dalal on 23rd January 1989. On 29th
of March 1989, a reminder was written in the name of D.G.Dalal. The respondents did
not get any reply for quite some time but by letter dated 17th of June 1989 the
petitioner No.1 was sent a reply and the petitioner No.2 was sent a reply on 29th of
204
June 1989. The reply by GDA was negative and it was mentioned that the request of
petitioner for change in the preference of her deleting the preference could not be
accepted. On the basis of these pleadings and relying upon Rule 7 and challenging the
validity of Rule 9 it was prayed that the petitioners be permitted to delete their
preferences and that the refusal to change such preferences as per the letters dated 17th
of June 1989 and 29th of June 1989 was arbitrary, unconstitutional and violative of
Article 14 of the Constitution and both these orders be quashed and set aside and Rule
9 be declared ultra vires.
17. Similar averments have been made in Special Civil Application No. 720 of
1990 by the petitioner, Umankhan U. Pathan, represented through Mr. Girish Patel
with regard to the selections held for Class-I and Class-II posts in June 1986 and
September 1987 and a prayer has been made that the respondents be restrained from
offering the post of Section Officer to the candidates in the waiting list and they may
also be directed to offer the post of Section Officer to the petitioner and to appoint him
as such as per their first preferences and Rule 9 be declared ultra vires of Articles 14
and 16 of the Constitution of India.
18. In the case of Special Civil Application No. 5705 of 1996 filed by petitioner.
Ubadiyabhai Katarbhai Vasava, represented through Mr. G.M. Joshi, it has been stated
that the petitioner had appeared in the combined competitive examination in
September 1986. The list of successful candidates was published wherein his name
was at Sl. No. 101. He claims that he is qualified for appointment to the Class-I post.
After the publication of the result the petitioner realised his mistake that though the
post of Dy. Superintendent of Police, Class-I was advertised the petitioner had applied
inadvertently for the next post, i.e., Superintendent of prohibition and Excise, Class-I
and he made a representation on 3rd of October 1989 to treat his 2nd preference to that
of Dy. Superintendent of Police. His request was turned down by the respondent
No.1 on 25th January 1990. The petitioner addressed another representation on 24th
April 1990 that he had made a request even for allotment of the post. That the
petitioner belongs to S.T. category and though the post of Dy. S.P. Class-I is lying
vacant the petitioner is not being offered such post. He raised the grievance that Mr.
Galabhai Motibhai Parghi at Serial No. 82 was selected for the post of GAS Class-1
but after performing his duties as such for a period of 2 ½ years he was permitted to
come back to the office of Superintendent of Prohibition & Excise with original-
seniority and continuity in service and likewise Mr. Jayprakash G. Vyas who was
selected to Class-I and Class-II in 1981 was asked for his consent by letter dated 27th
June 1984 by the respondent No.2 Commission and subsequently on 10th of August
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1984 and 17th November 1984 as to whether he was willing to accept other post as the
post preferred by him has already been filled-up. Similarly, Mr. Chandresh S. Rajpal
was offerred Dy. Superintendent of Police post though he had never opted for it.
Similarly, K.G. Vanjara and Mr. Katara though opted for the post which had been
filled up they were still accommodated. The petitioners therefore preferred another
representation dated 26th June 1982 quoting all the above acts of the Commission and
to give justice to him. Yet another representation was preferred on 9th February 1986
while the select list was still in force. He has submitted that the post of GAS class-I
was still vacant and the post of Dy S.P. was also vacant and yet the petitioner was
denied the same. On the face of these pleadings he has sought a direction against the
respondents to appoint him on GAS class-I post, i.e., of Dy. Superintendent of Police
as per the order of 1st and 2nd preference forthwith.
In the other Special Civil Application No. 3597 of 1990 the petitioner
Bipinchandra M. Parmar representing through Mr. G.M. Joshi has come with the case
that he belongs to the scheduled caste; that he was working as a Government Labour
Officer, which is a Class-II post, that for filling in 101 posts of Class-I and 188 posts
of Class-II with different designations the GPSC issued a common advertisement and
the preference given by him were as under:
1. GAS Class-I 2. Dist. Registrar of Co-op Societies. 3. Mamlatdar 4. Govt. Labour Officer. 5. Taluka Development Officer. 6. Sales Tax Officer, Class-II. 7. Assistant Registrar of Co-operative Societies. 8. Section Officer. 9. Deputy Superintendent of Police. The petitioner who passed the tests held in June 1986 and September 1987 was
called for oral interview between March and June 1988. Thereafter a merit list of
general seats and reserved seats for Class-I and Class-II were prepared and a separate
waiting list for Class-I and Class-II posts was also prepared. The petitioner's name
was at Serial No. 87 in the merit list of Class-I posts. According to him, as per the
merit list prepared by the Commission and recommended to the State Government the
following 6 SC candidates were recommended by Commission for appointment to the
Class-I posts:
Sr. No. Merit No. Name Marks
1. 81 Gunvantraj C. Vaghela 387
2. 83 Rajendrabhai K. Parmar 382
3. 84 Jagdishbhai H. Sarvakar 381
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4. 85 Amrutbhai B Parmar 380
5. 86 Manojkumar L. Makwana 376
6. 87 Bipinchandra M. Parmar 376
Thus, the petitioner was one of those candidates who were recommended by
Commission to Class-I post. Even before the decision was taken to make the
allotment of posts by the State, the candidate at Serial No. 84 Mr. Sarwarkar had
already shown his unwillingness in Class-I service. The petitioner was therefore
entitled to get the posting of Class-I Officer. The petitioner's claim is that because he
was selected at Serial No. 87 he was next to the Serial No. 84 for appointment to
Class-I post because the candidate at Sr. No. 84 had shown his unwillingness for
Class-I service. His grievance is that out of the above named 6 names belonging to
scheduled caste who were selected for Class-I post, except the petitioner, 5 others
were higher in merit and whereas the candidates at Sr. No. 84 had declined and shown
his unwillingness he ought to have been offered the Class-I post. Despite this, the
Class-I post was offered to Mr. Sarwarkar in the first instance and the post which was
not availed by Mr. Sarwarkar instead of being offered to him, the same is being made
use for appointment of the candidates from the waiting list maintained by the
respondents and these candidates in the waiting list are those who are ranking lower
than the petitioner. It has also been submitted that there was no vacancy in the District
Registrar of Co-op Societies office in the reserved Category and vacancies were
available only in general category. Therefore the first respondent went to the 3rd
option given by the petitioner, i.e., Mamlatdar which is a Class-II post, whereas the
vacancies were available in the second post only against general category. The
vacancies in reserved category were already allotted to the candidates recommended in
the reserved category. Yet the 1st respondent decided to give appointment to the
petitioner in the vacancy of general category and the petitioner was offered the post of
Mamlatdar. The action of the 1st respondent inn allotting the petitioner to Class-II post
in general category shows the non-application of mind ad in the facts of the case the
petitioner could very well have the Class-I post. On the basis of these pleadings it has
been prayed that the action of non-appointing of petitioner on the basis of GAS Class-I
be declared to be illegal and be set aside, and in the alternative to that of District
Registrar of Co-op. Societies and that the respondents be directed to appoint the
petitioner to GAS Class-I post of that of District Registrar of Co-operative Societies.
19. In Special Civil Application No. 931 of 1992, the petitioner, namely Sudhir B.
Patel represented through Mr. Paresh Upadhyay has come out with the case that he
was appointed as Mamlatdar vide order dated 21st December 1989 as at the time of his
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appointment he was at Serial No.1 in the order of merit for Class-II posts in the list
prepared by the Gujarat Public Service Commission based on combined competitive
examination which was held in June 1986 and September 1987 followed by
interviews. It has been further submitted that the petitioner was at Serial No. 1 in the
waiting list prepared for the cadre of Class-I Officers. He came to know that the
candidates at Serial Nos. 2 to 7 in the same list had appointed in Class-I cadre on
different posts such as Dy. in Class-I cadre on different posts such as Dy.
Superintendent of Police and District Registrar of Co-op. Societies and thus the
persons who stood in the waiting list of Class-I at Serial Nos. 8 to 13 were appointed
as Deputy Collector in Gujarat Administrative Service, i.e., Class-I post, whereas at
that time 12 vacancies had remained unfilled. His request for the post of Dy. Collector
which was his 1st preference was declined and therefore he filed the present petition.
Thus the petitioner's claim is based on fact that while he was placed at Serial No.1 in
the waiting list of Class-I cadre and at Serial No.1 on merit list of Class-II cadre the
GPSC on 30th November 1988 issued a list of candidates recommending appointment
in Class-I and Class-II posts. The petitioner was offered the post of Mamlatdar in
Class-II. According to the petitioner out of the 101 Class-I posts, there were 78 posts
in the cadre of Gujarat Administrative Service, 17 posts in the cadre of Dy.
Superintendent of Police and remaining 6 posts were in the cadre of District Registrar,
Co-operative Societies. Whereas the picture with regard to the Class-I posts was not
clear the petitioner was offered the post of Mamlatdar in class-II and he accepted the
same because of the fact that if he did not accept that post and thereafter does not get
the post of Class-I cadre his chance of service would have been affected. This is the
reason give out by him for claimed that he has given 1st preference to the Gujarat
Administrative Service Class-I post of Deputy Collector. In any case the situation as
was obtaining at that time no person lower in merit had been appointed in GAS Class-I
and therefore he joined as Mamlatdar in pursuance to the order dated 21st December
1989. The petitioner says that later on he came to know that out of 78 candidates who
were in the merit list of Class-I post, 8 candidates had not joined the service within the
stipulated time and therefore their appointments were cancelled. Against these
vacancies which became available on account of non-joining of 68 candidates it was
the petitioner who could have been appointed in Class-I post but strangely enough the
candidates who were far below him at Sr. No. 8 in the waiting list were offered
appointment in GAS while in petitioner was at No.1 in the very same list ad had given
GAS as his 1st preference being at Sr. No. 1 in the waiting list for Class-I post was
deprived of it. He legitimately expected that when 8 posts shall become available in
Class-I he stands the first chance to be appointed against any of the vacancies
becoming available on account of the candidates selected for Class-I unwilling to join
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and on their failure to join within the stipulated time. The petitioner therefore made a
representation to the Chief Secretary, General Administrative Department on 3rd
September 1990 requesting for appointment to Class-I post and it has been stated that
even prior to it he had sent several communications from 23rd December 1989 to 18th
April 1991. No reply was given except the letter dated 13th of May 1991 sent to him
by the Section Officer of GAD and aggrieved from the dental of appointment to Class-
I post as above the present petition was filed. The petitioner's grievance was further
coupled with the averments that the post of GAS, Class-I is a post at a higher pedestal
than the cadre of Mamlatdar and a person who has been appointed in the GAS has a
better prospects for nomination to TAS cadre as 70% of candidates are earmarked for
the candidates working in GAS Class-I and in case the petitioner is not appointed in
Class-I, his chance for advancement to TAS would be adversely affected.
20. On these pleadings, the prayer was made that the respondents he directed to
appoint the petitioner in GAS Class-I cadre with effect from the date of his
appointment as Mamlatdar and alternatively with effect from the date on which the
vacancies became available on account of the non-joining or failure to join by the
candidates who were in the main select-list for Class-I post. By this time the
petitioner has already been promoted to Class-I post, vide order dated 3rd January 1998
and since then he has been working on this post Mr. Paresh Upadhyaya has therefore
submitted that if his case is accepted, it will only be the question of antedating his
appointment on the post of Class-I without involving any other administrative
difficulties as has bee argued on behalf of the respondents.
21. With regard to Special Civil Application NO. 478 of 1990 and other cognate
petitions, on 29th of June 2001 on behalf of Government certain documents as
mentioned in the covering Note dated 29th June 2001 were produced and these
documents also include the list of candidates who are higher in merit than the
petitioners of Special Civil Application No. 478 of 1990 and other cognate petitions,
i.e., Special CA No. 6162 of 1989, Special CAs Nos. 613 to 622 of 1990. Special CA
No. 3597 of 1990 and Special CA No. 5705 of 1990 in the select list of Class-II and it
has been said that they too have got their 1st preference. The reference has been made
to the advertisement No. 25/85. A statement has also been filed showing the details
regarding the candidates who were allotted Class-II posts pursuant to the
advertisement No. 25/85 who have been subsequently selected to Class-I post. In case
of Special Civil Application No. 3597 of 1990 (represented by Shri. G. M. Joshi), i.e.,
the petition filed by Bipinchandra M. Parmar, a Note dated 21st June 2001 has been
filed. While admitting that this petitioner was at Serial No.6 for Class-I post as SC
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candidates, it has been submitted that as per the merit list prepared by the Commission
and recommended to the Government, 6 SC candidates were recommended for Class-
I. The petitioner was at Sr. No. 6. These posts of GAS Class-I were reserved for SC
candidates and before the petitioner's turn came, these posts were allotted to the
candidates who were ranking higher than the petitioner. As there were only 5 posts
the petitioner could not be given appointment as Class-I, whereas the petitioner's 2nd
preference was of District Registrar of Co-operative Societies and as there was no
reserved post in this category he could not be appointed as District Registrar of Co-op.
Societies, as his 3rd preference was Mamlatdar Class-II post and where as he had
secured 376 marks on the basis of his merit he was entitled to the post of Mamlatdar in
the general category and he was allotted to the unreserved post of Mamlatdar Class-II.
It has been submitted that the candidate at Sr. No. 84 who has been appointed as
Class-I namely Shri Sarwarkar had sent a communication dated 19th August 1989 that
he does not desire to be appointed to Class-I post and hence class-II post may be
considered as his 1st preference. It has been then submitted in this context that in view
of the provisions of Rule 9 of the Rules the request of Mr. Sarwarkar for being
considered for Class-II post as his 1st preference could not be entertained and therefore
on 21st December 1989 he was appointed on Class-I post of GAS his original
preference. Shri Sarwarkar did not accept Class-I post and the appointment of Mr.
Sarwardar was cancelled. Thereafter further names were called for from the list to
fill-up the vacancies as well as further vacancies for allotment against vacancies of
GAS Class-I which occurred due to non-acceptance by Shri. Sarwarkar. When the call
letter Annexure C was issued to the petitioner on 29.11.1989, the appointment of Mr.
Sarwarkar to the post of GAS Class-I had not yet been cancelled. One fails to
understand as to when Mr. Sarwarkar had declined the appointment to the class-I post
and the vacancy had become available in Class-I post while this vacancy was not
available to this petitioner i the reserved category, instead of taking him to the post of
Mamlatdar, Class-II in the unreserved category merely because on 29th November
1989 the appointment of Shri. Sarwarkar had not been cancelled and it was cancelled
later on 3rd February 1990, how the right of the present petitioner could be defeated on
that basis for Class-I post.
22. We have already held in earlier part of this order that Rule 9 cannot be
declared to be invalid ad the same is a valid piece of legislation. Even if the
candidates cannot seek a change of preference after the allotment, apart from the fact
that we find that the facts of the case are that even in some cases the request has been
made even prior to the allotment, the question is as to what is the obligation of the
government itself for the purpose of filling up the vacancies which are available when
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a candidate of higher merit is appointed to the post of Class-I fails to join or declines
to join but the question which is posed on the facts of this case is as to whether while
filling up these posts the stand of the Government that the posts have to be filled in
from the candidates who are in the waiting list can be said to be justified? While
defending the action of the Government the learned Advocate General has first of all
made a reference to Special Civil Application No.388 of 1997 (M.B. Shah J) decided
on 24th November 1998 wherein the earlier decisions rendered on 05.02.1996 in
Special Civil Application No. 246 of 1986 (Justice Gheewala) was also considered. In
this regard it may be observed that the decision in the case of Special Civil
Application No. 388 of 1987 was made a subject matter of challenge by way of filling
letters Patent Appeal No. 460 of 1988 along with which these matters are referred and
in that matter (LPA) it was given out that the vacancy which had become available in
the particular selection had not bee filled up from any candidates of that selection but
the candidate who was in lower merit but was selected in the subsequent selection and
on the merit of such subsequent selection and that LPA was dismissed as having
become infructuous in the facts of the case by this Court while hearing these matters.
Therefore, that decision cannot be cited as an authority for the purpose of deciding the
controversy at hand.
So far as the decision dated 05.02.1986 rendered in Special Civil Application
No. 342 of 86 decided on 05.02.86 by Justice Gheewala is concerned, that on the
contrary helps the case of the petitioner. The said judgment was distinguished even in
Special Civil Application No. 388 of 1997 on the ground that this was based on earlier
set of rules ad those rules had been subsequently repeated and new rules had come into
force. Thus, in our opinion, these two decisions cannot be said to be of any assistance
for the purpose of deciding the controversy in this case, which is based on the Rules of
1980.
23. The reliance was also placed on the following decisions by the learned
Advocate General:-
(1) Full Bench decision of Delhi High Court in the case of Sandhya Kabra V. University of Delhi reported in AIR 1993 Delhi 40 relating to admission of the students in the PG Medical Course wherein the earlier decision of the Supreme Court reported in AIR 1971 SC 1439 was also considered.
(2) Full Bench decision of Delhi High Court in the case of Dr.
Via Gupta V. University of Delhi reported in AIR 1994 Delhi 108 relating to admission of the students in the PG Medical Course.
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(3) Naveen Jamval V. Arvind Kumar Kenkane reported in AIR 2000 All 191 relating to admission of the students in the PG Medical Course.
(4) Arvind Kumar Kankane V. State of UP &: Ors. reported in
JT 2001 (6) SC 260. Note: This case decided by the Supreme Court was cited before us during the course of the dictation of the order on 27.08.2001. Therefore, the matter was posted for 30.08.2001 so that the learned advocates for the petitioners may put up their case and deal with this latest judgment of the Supreme Court decided very recently on 03.08.2001 i.e. after commencement of the dictation of the order in this case. On this question, the arguments were further heard on 31.08.2001.
(5) Rajiv Mittal V. Maharshi Dayanand University reported in
AIR 1998 SC 680, which is relating to the case of students for admission in the MBBS Course.
(6) Union of India V. MVVS Murthy reported in AIR J 989 SC
711. Para 5 case relating to Civil Service (Combined) Examination. It appears that in this case the candidate who gave preference for TAS only was offered IPS but did not join. The said candidate appeared in the next year examination but was not successful for IAS and IPS. He received offer for Central Information Service, Group A on the basis of the earlier examination and the Supreme Court found that he could not claim IPS since a candidate lower to him had bee selected for IPS.
(7) State of Bihar V Kaushal Kishore Singh reported in AIR
1997 SC 2643. In this case Class B posts were advertised by the State Selection Board. No merit list was prepared. The selections were made on the basis of the educational qualifications required for the job and on the basis of the pay scales available at that time. The learned Advocate General has relied upon certain observations made in para 5 of the judgment. It is of course true that in para 5 it has been observed that the appointment is not an indefeasible and absolute right of the candidate who had applied and opted for particular post and asking for option is only a discretionary matter and the Government is not bound to select the candidates on the basis of the option given by the candidates. But we find that this case cannot be used as an authority in support of the State Government for the simple reason that in that case no merit list was prepared ad without preparing the merit list the selection was based on the basis of educational qualifications required for the job and the offer was made on the basis of the pay scale and ultimately in that case the Supreme Court held that the appointment by pick and choose method is an arbitrary exercise of the power. It has been decided that the government should prescribe an objective and rational method of manner of allotment of the candidates selected to the Departments, depending upon their job necessity and requirement and since the objective and rational criteria was not followed, the Supreme Court declined to interfere with the order
212
passed by the High Court and the appeal was disposed of accordingly.
(8) Malaprabha Co-op. Sugar Factory Limited V. Union of
India reported in AIR 1994 SC 1311. It was also submitted by the learned Advocate General that even if it is accepted more meritorious candidates should have been given preference in comparison to the candidates in the waiting list, no relief should be granted. In support of this submission, he has placed reliance on observations made in para 110 of the judgment at page 1332. It was a case under the essential Commodities Act. In para 110 of the said judgment a passage occurring at page 294 of Judicial Remedies in Public law by the Clive Lewis was quoted as under :-
"The courts now recognise that the impact on the administration is relevant in the exercise of their remedial jurisdiction. Quashing decisions may impose heavy administrative burdens on the administration, divert resources towards re-opening decisions, ad lead to increased and unbudgeted expenditure. Earlier cases took the robust line that the law had to be observed, and the decision invalidated whatever the administrative inconvenience caused. The courts nowadays recognise that such an approach is not always appropriate and may not be in the wider public interest. The effect on the administrative process is relevant to the courts remedial discretion and may prove decisive".
(9) The learned Advocate General has also sought to distinguish the case of Balram Gupta V. Union of India reported in AIR 1987 SC 2354. It was a case relating to the withdrawal of notice of voluntary retirement given by the employee under the Rule well within the time prior to the expiry of the notice period. The order allowing to retire the employee prospectively on expiry of notice period without allowing withdrawal of such notice was held to be illegal. In para 12 of this judgment it has been observed as under:-
"In the modern age we should not put embargo upon people's choice or freedom. If however, the administration had made arrangements acting on his registration or letter of retirement to make other employee available for his job, that would be another matter but the appellant's offer to retire and withdrawal of the same happened in so quick succession that it cannot be said that any administrative set up or management was affected. The administration has now taken a long time by its own attitude to communicate the matter. For this purpose the respondent is to blame and not the appellant". The distinction was sought to be made by saying that it was a case of voluntary retirement. This point of distinction is no distinction in the eye of law.
213
(10) A.N. Meman V. High Court of Gujarat reported in 1987 (2) GLH 429. It was a case in which there was a delay and laches, the promotions had been made in the year 1976 and the same had been challenged in the year 1984 therefore it was held to be a case of gross delay. Such is not the fact situation in the case at hand.
(11) Gujarat State Dy. Executive Engineers Association V.
The State of Gujarat & Ors. reported in JT 1994(3) SC 559. It was a case in which the Court considered that a waiting list prepared in an examination conducted by the Commission does not furnish the source of recruitment. Its purpose is only for the contingency that if any of the selected candidates does not join for one or the other reason the person from the waiting list may be pushed up and appointed in the vacancy so caused of if there is extreme exigency the Government may as a matter of policy decision pick up persons in the order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice may result into depriving those candidates who are eligible for completing for the vacancies available in future. This judgment was sought to be distinguished by making reference to the observations made in para 11 of this judgment by saying that the court had observed that entire appointment of direct recruits, therefore, from the waiting list was not proper and yet the Supreme Court observed that these persons had been appointed and are working at least for five years and therefore it is unjust and harsh to quash their selection. Therefore, while refraining from quashing the appointment made in pursuance of the directing issued by the High Court, it was opined that the writing list for one year cannot furnish source of recruitment for future years, except in very exceptional cases. This decision cannot apply to the facts of the present case for the simple reason that here the candidates of the waiting list in the same year and same selection are being preferred over the candidates with higher merit in the same selection. In this context, the argument raised that the interim order dated 28.01.2001 vacated by the Division Bench and ultimately it was modified on 05.04.1990 and at that point of time clock stopped. We find that merely because the matter has been pending for a long time, it cannot be said that the clock stopped when the interim order was modified on 05.04.1990.
24. Mr. Girish Patel has relied upon the following cases:-
(i) Dilip Kumar V. State of M.P. reported in AIR 1976 SC 133 on the question and alternative construction. The observations made in para 22 that no case should be held to fall within which does not come within the reasonable interpretation of the statute.
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(ii) Case of Kumari Shrilekha Vidyarthi V. State of UP reported in AIR 1991 SC 537 was also cited by Mr. Patel in reference to paragraphs 22, 31,33 and 36 in which it was laid down that whatever may be the motive of the public authority, it should meet the test of Article 14 of the Constitution of India.
(iii) Mr. Patel also relied upon the case of Delhi Science
Forum V. Union of India reported in AIR 1996 SC 1356 in support of his argument that when there is any legal or constitutional bar in adopting any government policy, it can certainly be examined by the Court.
(iv) The case of Tata Cellular V. Union of India reported
in AIR 1996 SC 11 was also cited. The attention was invited to para 96 of the said judgment on the question of rationality of any government action and when breach of the principles was argued with regard to decision making process and it was submitted that the impact of the Rule is to be seen.
(v) The case of Rameshwar V. Jot Ram reported in AIR
1976 SC 49 is relied upon by Mr. Patel to argue that the right of relief is to be seen as on the date of the institution of the prosecution and the Court's procedural delays cannot affected the rights crystalised in initial cause of action and the court has power to take note of the subsequent events.
(vi) In B. Prabhakar Rao V. State of AP reported in AIR
1986 SC 210 in para 20 the Supreme Court observed that Judge's lyfriend and counsellor, "the common man, if asked will unhesitatingly respond that it would be plainly unfair to make any such classification. The common sense response that may be expected from the common man, untrammeled by legal lore and learning should always help the judge in deciding questions of fairness, arbitrariness etc., The observations made in the end of para 22 were also relied upon.
25. Whereas strong reliance has been placed by the learned Advocate General on
the case of Arvind Kumar Kankane V. State of UP (Supra), on behalf of the petitioners
it has been submitted with vehemence that the cases relating to the admission of the
students including the case of Arvind Kumar Kenkane V State of Uttar Pradesh can't
be applied to the service matter as it is such cases operate in an entirely different field
of education and here is a case under service law. The government itself had taken a
period of about four years in making the appointments after holding the selection and
it has been submitted that even otherwise considerations in the education matters are
entirely different than the service matters. It has also been submitted that in the case
of Arvind Kankane it was held in relation to admission to PG Medical Courses that
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allotment of subject (Speciality) and college of study made on the basis of the option
exercised by a candidate is final and no candidate is permitted to change the subject or
college. A candidate who does not exercise his choice at the time of counseling will
be kept in the waiting list and if at any subsequent stage a seat falls vacant the same
shall be allotted on the basis of the option exercised by those who are in the waiting
list. The rule providing to this effect was challenged. The grievance was made that if
a choice subject like surgery and medicine is given up by a candidate and that seat
becomes vacant it may go to a candidate who is lower in rank in the merit list. This is
only a fortuitous circumstance dependent on so many contingencies like the student
who has been allotted a sear in medicine, giving up the said seat and that seat falling
vacant and thereafter the same is allotted to a candidate who is lower in rank in the
merit list. Such freak circumstances cannot be the test of reasonableness of the Rule.
However, Mr. Patel has submitted on behalf of the petitioners that the Supreme
Court itself has observed in para 3 of this very judgment that prima-facie though it
appears to be some unfair, there is no alternative apart from leaving the seat unfilled,
but to offer the said seat to the wait listed candidates. It was also observed that once
the academic course commences the same will have to be completed within a period
of three years and if the counseling goes on continuously for a long period the it may
not be possible to fulfill that condition and thereby upset the course of study itself.
The Supreme Court has expressed the view that the finding recorded by the Division
Bench of Delhi High Court in Dr. Veena Gupta's case and High Court of Punjab and
Haryana in Anil Jain's case is in accordance with the reasons and stands the test of
rationality. Once the option is exercised by the candidate on the basis of which he is
allotted the subject and thereafter that candidate is allowed to participate in subsequent
counseling when the sear becomes vacant, the process of counseling will be endless
and as apprehended by the High Court, it may not be possible to complete the
academic course within the stipulated period. Mr. Patel has submitted that in the case
before the Supreme Court the time was essence of the matter whereas that factor is not
available in the present case. The government itself had taken long time even in
making appointments and if we have reached the year 2001, it is not because of any
fault on the part of the petitioners but because of the pendency of this matter before
the Court and that should not come in the way of the candidates of higher merit for
getting relief.
26. Mr. Patel has also made reference to the case of Liladhar V. State of Rajasthan
reported in AIR 1981 SC 1776, the case of Ashok Kumar Yadav V. State of Haryna
reported in AIR 1987 SC 454, the case of D.V. Bakshi V. Union of India reported in
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AIR 1993 SC 2374 and Indian Airlines Corporation V Capt. KC Shukla & Ors.
reported in (1993) 1 SCC 17 and submitted that notwithstanding the case of Ajay
Hasia reported in 1981 SC 487 the Supreme Court has itself found that standards
which are applied in the education matters cannot be made applicable as it is to the
service matters. He has submitted that areas of operation being different in service
matters than those of education matters, they cannot be applied as it is. It is of course
true that in these cases decided by the Supreme Court the question was as to what
weightage should be given to the marks prescribed for viva voce test and the ratio laid
down by the Supreme Court is that the marks prescribed for viva voce test should not
be made decisive factor for the purpose of selection. Therefore, his submission is that
the law must be developed area-wise. A purposive effort was also made to distinguish
the case of Arvind Kumar Kankane (Supra) by stating that so far as the admissions to
PG Medical Colleges are concerned, the students get the opportunity to change the
option after declaration of the merit list and second stage is at the time of actual
allotment of the preference for the purpose of making choice of subject and college
and the third stage is when vacancies become available subsequently after the
allotment. It was also submitted that in service matters also the fortuitous
circumstances of the working of the rule has to be see. The availability of a vacancy
on account of non-joining of any candidate has to be utilised by the Government on a
proper criteria of merit. It was also submitted that in education matters the Supreme
Court itself has stated that there is no alternative because the course had already
commenced and if the preference is allowed to be changed subsequently it may disturb
the whole academic functioning. In any view of the matter, the Supreme Court has
held that the process was unfair but in absence of any other alternative, the allotment
of the subjects, as has been made, had to be accepted. It has been submitted that such
is not the fact situation in the present case. There is no question of commencement or
completion of the course of disturbing the academic functioning and even if the
preferences are not allowed to be changed after allotment on the request of the
concerned candidate in terms of rule 9, the Government itself must discharge its
obligation and the duty to adhere to the merit by utilising the subsequent vacancies on
the basis of the merit alone, as it is not going to affect the working. It has further been
submitted that the ground of the administrative exigency, as has been argued before
this court, is only a pretext to deny what is otherwise due to the petitioners. It is also
pointed out that the Government itself has subsequently amended the rules during the
pendency of these petitions for the same reasons as advanced by the petition and such
rules have been placed on record by the Government itself and the said rules made
under the provision to Article 309 of the constitution of India called as Gujarat Civil
Service (Class-I and Class-II) Competitive Examination Rules, 2000 have been
217
notified on 19.10.2000 and the new Rule 9 there under with regard to order of
preference lends a support to the arguments made on behalf of the petitioners. It was
also submitted that the UPSC itself follows such a procedure and change of preference
is permissible there also.
27. In case of Union of India V Dhanwanti Devi and Ors. reported in (1996) 6
SCC 44 in para 9 at page 51 the Supreme Court has considered as to how the law of
precedent is to be applied. In this context, the objection which was raised that Hari
Kishan Khosla's case was not a binding precedent nor does it operate as a ration
decidendi to be followed as a precedent and is per se per incuriam. The following
observations may be quoted:-
"It is everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well settled theory of precedents, every decision contain three basic postulates [i] findings of material facts, is the interference which the Judge draws from the direct, or perceptible facts: [ii] statements of the principles of law applicable to the legal problems disclosed by the facts and [iii] judgment based on the combined effect of the above".
The Supreme Court has thus categorically held that a decision is only an
authority for what it actually decides. What is of the essence in decision is its ration
and not every observation found therein and not what logically follows from the
various observations made in the judgment. Every judgment must be read as
applicable to the particular facts proved, since the generality of the expressions which
may be found there is not intended to be exposition of the whole law, but governed
and qualified by the particular facts of case in which such expressions are to be found.
It would, therefore, be not profitable to extract a sentence here and there from the
judgment and to build upon it because the essence of the decision is its ratio and not
every observation found therein. The enunciation of the reason of principle on which
a question before a court has been decided is alone binding between the parties to it,
but it, is the abstract ratio decideni, ascertained on a consideration of the judgment in
relation to the subject matter of the decision, which alone has the force of law and
which, when it is clear what it was, is binding. It is only the principle laid down in the
judgment that is binding law under Article 141 of the Constitution. A deliberate
judicial decision arrived at after hearing an argument on a question which arises in the
case or is put in issue may constitute a precedent, no matter for what reason, and the
precedent by long recognition may mature into rule of "stare decisis". It is the rule
218
deductible from the application of law to the facts and circumstances of the case which
constitutes its ratio decidendi.
28. The decision in the case of Deena V Union of India reported in AIR 1983 SC
1155 has also been relied upon. In para 15 of the said decision it has been observed as
under:-
"Any case, even a focus classicus, is an authority for what it decides. It is permissible to extend the ratio of a decision to cases involving identical situations, factual and legal, but care must be taken to see that is not done mechanically, that is, without a close examination of the rationale to the decision which is cited as a precedent. Human mind, trained even in the strict discipline of law, is not averse to taking the easy course of relying on decisions which have become famous and applying their ratio to supposedly identical situations".
29. The last but not the least is the case of State of Mysore V S.R. Jayaram
reported in AIR 1968 SC 346 as was cited by Mr. P.V. Hathi on behalf of the
petitioners. In this case the Supreme court was concerned about the validity of the last
part of Rule 9(2) of Mysore Recruitment of Gazetted Probationers' Rules, 1959, which
was in the following terms:-
" Appointment of Probationers:-
(1) Subject to the rules regarding reservation of posts for backward classes contained in Government Orders Nos. GAD 26 ORR 59, dated the 13th May 1959, and No. GAD 32 ORR 59, dated the 18th July 1959, and the provisions of sub rule (2), the candidates successful in the examination whose names are published under rule 8 shall be appointed as Probationers to Class-I posts in the order of merit, and thereafter to Class I posts in the order of merit.
(2) While calling for applications, the candidates will be
asked to indicate their preferences as to the cadres they wish to join. The Government, however, reserves the right of appointing to any particular cadre, any candidate whom it considers to be more suitable for such cadre".
The rules made provisions for direct recruitment to several cadres in the State
government service on the basis of the result of the competitive examination. This
examination was held annually. It was open to all eligible candidates. The result of
the examination was announced and the list of the successful candidates in the order of
merit was published subject to the reservation of Scheduled Castes, Scheduled Tribes
and Backward Classes, the successful candidates are entitled to be appointed as
219
probationers to Class-I posts in the order or merit and thereafter to Class-II posts in the
order of merit. If there are vacancies in a number of Class-I or Class-II cadres, Ruler
(2) comes into play. The candidates are required to indicate in their applications their
preferences for the cadres they wish to join. Had there been nothing more in Rule
9(2), the successful candidates would have the preferential claim in the order of merit
to appointment in the cadres for which they indicated their preferences. Thus, if there
are 20 vacancies in cadre 'A' and 7 vacancies in cadre 'B', a successful candidate
ranking fourth in order of merit would be appointed as a matter of course to cadre 'A'
for which he indicated his preference. In this context, the Supreme Court has
categorically observed in para 6 that the principle of recruitment by open competition
aims at ensuring equality of opportunity in the matter of employment and obtaining
the services of the most meritorious candidates. The last part of Rule 9(2) subverts ad
destroys the basic objectives of the preceding rules. It vests in the Government an
arbitrary power of patronage. Though Rule 9(1) requires the appointment of
successful candidates to Class I posts in the order of merit and thereafter to Class II
posts in the order of merit, Rule 9(1) is subject to rule 9(2), and under the cover of
Rule 9(2) the government can even arrogate to itself the power of assigning a Class I
post to a less meritorious and a Class II post to a more meritorious candidate. It was
held we hold that the latter part of Rule 9(2) gives the government an arbitrary power
of ignoring the just claims of successful candidates for recruitment to offices: under
the State. It is violative of Article 14 and 16(1) of the Constitution and must be struck
down.
We have considered the submissions as above made by both the sides in the
light of the principles which have been decided in the cases as aforesaid. In our
opinion, the principles which have been laid down in the cases related to education
matters are in entirely different areas, in different context and different fact situation.
Such a situation, as it is, cannot be applied in service matters. In the case of Arvind
Kumar Kankane (supra) the court had to keep in view the question of careers of
students within the prescribed time and therefore it was held that though the course
adopted was unfair, there being no other alternative the course adopted was as had
been given in the matter of specialties and PG Medical College had to be accepted.
Here, we find that the grievance as has been raised on behalf of the petitioners is fully
covered by the observations made by the Supreme Court in the case of State of
Mysore V. S.R. Jayaram (Supra). The ratio decidendi which is applicable to the facts
of the present case is that the merit must prevail. In our opinion, while applying Rule
9 in the present case at had the Government has virtually usurped the same power as
were given under 9(2) in the case of state of Mysore V. Jayaram (Supra). The moment
220
subsequent vacancies were available, the same were made use of for the candidates
from the waiting list who are certainly les meritorious than the petitioners. The facts
of the case of Special Civil Application NO. 931 of 1992 are illustrative of the
arbitrary manner in which the power has been exercised. This petitioner was No.1 in
the waiting list and the persons lower to him in merit have been allotted the preference
and yet when the subsequent vacancies became available, this petitioner was denied
his first preference and such preference to Class-I post was given to the candidates
who are lower in merit. It is a case of complete and total erosion of merit on grounds
which cannot be said to be germane. In such matters the ground of administrative
exigencies and that the change of preference would create administrative problems
cannot be accepted. After all, the select list is based on a combined competitive
examination and how a person who is lower in a merit in a select list based on the
same combined competitive examination can be chosen for a higher preference to the
exclusion of the person with higher merit. It does not appeal to the reason and the
basic tenets on which the selections are held. If such course of action is not declared
to be illegal, it would simply give rise to the recurrence and repetition of such cases
and merit would go on being ignored again and again causing heart burning amongst
the persons who have obtained higher merit. As we have interpreted Rule 9 so as to
save its validity on the principle of harmonious constructions, we find that whether the
request of a candidate for change ca be entertained or not, the Government itself is
under an obligation to act in a fair manner on the concept of Art. 14 of the
Constitution and in the facts of the present case there is an alternative and the
alternative is to change the preference without causing any prejudice to any body's
rights and there is no question fo time constraints like academic courses and we have
to allow the merit to prevail over so-called administrative inconvenience. Even if
there is some administrative inconvenience, this price, a small price indeed, has to be
paid if at all we mean the rule of law and merit to prevail. Such preferences may be
changed either from class II to class I or within a class against respective posts and
that in our opinion is not going to create any administrative complications. Such
practice is also in vogue in the case for the selections which are held by UPSC for All
India Services ad Central Services ad we may also take note of the fact that the
Government itself has lately realised unfair results of past and the wisdom has dawn
though lately to amend the Rules in October 2000 and therefore the new Rule 9 with
regard to order of preference as has been now amended now takes care of it.
30. The upshot of the aforesaid discussion is that:-
(A) The respondents are directed to pass appropriate orders and allot appropriate preference against the subsequent vacancies which had become available on any post in Class-
221
I of Class-II strictly according to merit and the petitioners having higher merit in comparison to the other candidates in the waiting list, have to be given priority for the respective post in each of the two classes according to higher merit from due date of course, it will not entail any financial burden on the State Government for the period in past and except the financial benefits the petitioners of these 14 Special Civil Applications shall be entitled to all consequential benefits as a result of the allotment of their due preference on the basis of their merit.
(B) If it is found in case of any petitioner that there is a change
from Class-I on the basis of his merit or for any post within the class and he has been subsequently promoted to Class-I post, the respondents shall revise it to relate back to the due date on which he would have got it on the basis of his merit at initial stage and in such cases the pay shall also be fixed notionally as if he had been appointed to Class-I from the very beginning and he shall also be entitled to the difference of arrears between the pay actually drawn by him on the higher post and the pay which he would have drawn on the basis of the pay notionally arrived at.
(C) Out of 16 Special Civil Applications 14 Special Civil
Applications except Special Civil Application No. 478 of 1990 filed by Mr. D.G. Dalal and Special Civil Application No. 614 for 1990 filed by Mr. Haresh Darji are allowed. Rule is made absolute in each of these 14 petitions. No order as to costs.
(D) Since the matter has remained pending for number of years,
it is expected that appropriate steps shall be taken as expeditiously as possible by the Government to carry out above directions at the earliest but in no case later than four months from the date the certified copy of this order is served on the concerned authorities through either of the parties or through the Court, whichever is earlier.
(E) Special Civil Application No. 478 of 1990 filed by Mr. D.G.
Dalal and Special Civil Application No. 614 of 1990 filed by Mr. Haresh Darji are hereby rejected as not pressed as stated in para 3 of this judgment itself. Rule in each of these two Special Civil Applications is hereby discharged. No order as to costs.
Still, while we have decided all these 14 Special Civil Applications on merits,
after hearing both the sides at length including the hearing during the course of the
dictation of order when the matter was deferred because of the case cited on behalf of
the respondents. Mr. Harsh Devani, learned Asstt. Govt. Pleader has requested that
the operation of this judgment be stayed. We do not find any case for staying the
order. The request is declined.
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222
Special Civil Application No.2664 of 2001 and connected cases D.D. 15.7.2002
Hon'ble Mr. Justice C.K.Buch Shah Jolly Chandravadan – Petitioners Versus State of Gujarat - Respondents Recruitment to the post of Lecturer in Government Colleges (Class-II Gazetted) Pursuant to notification dated 13.6.98 for recruitment to fill up 475 vacancies of Lecturers in Government Colleges, the Gujarat Public Service Commission after the selection prepared a select list and forwarded the same to the Government for issuing appointment orders. At that time, more than 300 Lecturers were working on ad hoc basis in the vacancies notified subject to availability of regularly selected candidates by Public Service Commission. As there was delay in issuing appointment orders to the selected candidates they approached the High Court. Lecturers who were working on ad hoc basis also approached the High Court for regularization of their service. The High Court has allowed the applications filed by the selected candidates and rejected the applications filed by ad hoc Lecturers and issued direction to the State Government to issue appointment orders to the selected candidates after terminating the services of ad hoc Lecturers following the principle "last come first go".
Cases referred: 1. AIR 1987 SC 2034 Osmania University Teachers Association V/s State of Andhra
Pradesh & Anr. 2. 1992(2) SCC 29 Karnataka State Private Stop-Gap Lecturers Association v/s State
of Karnataka & Others 3. 1992 (3) Scale 361 Sabita Prasad v/s State of Bihar 4. 1994 Lab. I.C. 2343 Bhagalpar University v/s State of Bihar 5. AIR 1996 SC 2775 Dr. Surinder Singh Jamwal & Anr. V/s State of Jammu & Kashmir 6. 1997(1) SCC 350 P.Ravindran & Others v/s Union Territory of Pondicherry and others
***
223
HARYANA PUBLIC SERVICE COMMISSION
224
1991 (5) SLR 155 Miss Misha Kukreja –vs- State of Punjab & Others
Rounding off marks is not permissible The proposition of Law that the plea of rounding off is not tenable, is settled by the Hon'ble High Court in 1991(5) S.L.R. 155. In the above, case, a candidate who had secured 149.5 marks viz. 0.5 marks less than 150 – requisite marks, claimed the benefit of rounding off so as to be eligible for the admission to M.B.B.S. course. The plea was rejected by the D.B. of Punjab & Haryana High Court. The proposition of law that the plea of rounding off is not tenable, is also settled by Hon'ble High Court in (i) Dr.Surinder Kumar –vs- Kurukshetra Uni.-2000(1) SLR (35) D.B. & Kuldeep Singh –vs- State of Punjab 1997 (5) SLR 133 (F.B.).
1993 (5) SLR 36 Hoshiar Singh –vs- State of Haryana Selection and appointment made in excess of the number of posts advertised is illegal
Since the requisition was for eight posts of Inspector of Police, the Board was required to send its recommendations for eight posts only. The Board, on its own, could not recommend names of 19 persons for appointment even though the requisition was for eight posts only because the selection and recommendation of larger number of persons than the posts for which requisition is sent. The appointment on the additional posts on the basis of such selection and recommendation would deprive candidates who were not eligible for appointment to the posts on the last date for submission of applications mentioned in the advertisement and who became eligible for appointment thereafter, of the opportunity of being considered for appointment on the additional posts because if the said additional posts are advertised subsequently those who become eligible for appointment would be entitled to apply for the same. The High Court was, therefore, right in holding that the selection of 19 persons by the Board even through the requisition was for 8 posts only, was not legally sustainable. Selection Board cannot relax the standard of physical fitness prescribed – Selection of persons who fail to qualify the items prescribed for the post is illegal. Cases referred:
1. 1985 (3) SLR 200 (SC Ashok Kumar Yadav v. State of Haryana, 2. 1990 (3) SCC 655 District Collector & Chairman, Vizianagaram Social
Welfare Residential School Society, Vizianagaram v. M.Tripura Sundari Devi,. 3. 1991(1) SLR 176 (SC) Vikram Singh v. The Subordinate Services Selection
Board, Haryana,. 4. 1991 (1) SLR 546 (SC) Mohinder Sain Garg v. State of Punjab.
***
225
R.S.J. 1997 (3) Page 475 Rahul Prabhakar –vs- Pb.Tech.University (F.B.) Decided by F.B. of Punjab & Haryana High Court
Late receipt of application is not allowed Time and date for the receipt of application fixed in the Prospectus/ information/advertisement has to be strictly adhered to. It is not to be altered by this Court under Art. 226. When time and date has been given/stipulated in the advertisement, it must be strictly adhered to. It would lead to uncertainty, arbitrariness.
2002 (1) R.S.J. 64
Devki Nandan Sharma –vs- State of Haryana & Others
Selection of Committee of PSC can formulate the criteria for selection Para 10 – Recruitment – Petitioner participated in interview and in the selection and never made any grievances about the selection criteria prior to interview – challenged to the selection thereafter after he failed, Held it is not open now to say that the selection and appointment of respondent is bad. Art. 320 of the Constitution nowhere bars a selection committee of the Haryana Public Service Commission to formulate the criteria for selection.
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226
PUNJAB AND HARYANA HIGH COURT CHANDIGARH BENCH
Civil Writ Petition No.10096/1999 D.D. 02.02.2000
The Hon'ble Mr. Justice R.S. Mongia The Hon'ble Mr. Justice J.S.Narang
Anil Kumar – Petitioner –vs- State of Haryana & Anr. - Respondents Held – Since the posts in the H.C.S. (Ex. Branch) & Allied services are filled through competitive examination, which is a major part of selection, and is followed by interview, we are of the view that the petitioners have no case to ask for preference over the other ex-servicemen. We find no merit in these writ petitions, which are hereby dismissed.
JUDGMENT
This order will dispose of civil writ petition Nos. 10096 of 1999 and 492 of
2000 involving the identical questions of law.
In CWP.NO. 10096 of 1999, Petitioner Anil Kumar is the son of an armed
service personnel, who died in action in war with the Pakistan in the year 1971.
Petitioner in the other writ petition viz. CWP 492 of 2000, namely Dilbag, who was
working as Airman in the Indian Air Force, was discharged on January 31, 1991, from
the Air Force. The reasons given for the discharge were "medically boarded out." In
the pension Certificate, issued to the said petitioner, it has been mentioned that the
petitioner was suffering from Bronchial Asthma, which was accepted as attributable
to/aggravated by service and was assessed at 30% for two years as the disability
element and was accordingly granted disability pension. Both the petitioners applied
for Haryana Civil Service (Executive Branch) and Allied Services in response to an
advertisement, Annexure P1, issued by the Haryana Public Service Commission. The
last date for submitting the applications was April 15, 1997. The petitioners appeared
in the competitive written test and after qualifying the written test, they were called for
interview, but ultimately they did not make the grade for appointment. The grievance
made in the present writ petitions is that as per Haryana Government instructions,
dated March 06, 1972, issued by the Chief Secretary to all Heads of Departments
under the subject " Rehabilitation of disabled ex-servicemen personnel and dependents
of those killed /disabled in action." It had been provided that reservation for the ex-
servicemen should be in the following order:-
" (a) Reservation: The existing reservation in respect of civil posts for ex- servicemen should be utilized in the order given below:-
227
(i) disabled ex-servicemen with disability between 20% to
50% (ii) upto two dependents of service personnel killed/disabled
beyond 50% (iii) other ex-servicemen."
Petitioner in CWP 492 of 2000 (Dilbag) claimed that he fell in category (i)
above, whereas petitioner in the other case claimed that he fell in category (ii) above
and, therefore, they should have been given appointment to the H.C.S. (Executive
Branch) and Allied Services in preference to candidates from category (iii) above. In
fact, according to the petitioners, the appointments have been made from category (iii)
in derogation of the rights of the petitioners. In CWP NO. 10096 of 2000, notice of
motion had been issued. Reply has been filed. Learned Counsel for the respondents
drew our attention to the following part of the instructions. Annexure R.1 with the
written statement, which is a complete set of instructions dated March 06, 1972:-
"(c) procedure for appointment: (i) Class III and IV Posts:
As and when a vacancy reserved for ex-servicemen arises, intimation will be sent to the Employment Exchange (special cell for employment of Ex-servicemen) by the appointment authority. It will be indicated therein that only names of disabled servicemen (disability between 20% to 50%) and the dependent of those killed / disabled beyond 50% in action should be recommended for that post. The appointing authority will also intimate to the Employment Exchange the relaxed qualifications, if any, fixed by the appointing authority in that particular case. If the names of above two categories are not available with the Employment Exchange and the appointing authority has no application of these categories pending with it, then the names of other ex-servicemen will be called for to fill that post. The appointment of disabled ex-servicemen (disability between 20% to 50%) and of the dependents of those killed / disabled beyond 50% in action will be made on ad hoc basis in the first instance and later their cases will be referred to the Haryana Subordinate Services Selection Board for regular appointment. (ii) Class I and II posts:
For Class I and II posts of which recruitment is not made through competitive Examination, the appointing authority while forwarding the requisition to the Haryana Public Service Commission will also forward a copy to the Director, Employment Haryana (special cell for employment of Ex-servicemen). If the names of disabled ex-servicemen (disability between 20% to 50%) and dependents of those killed / disabled beyond 50% in action are available with the Employment Exchange then those names will be sent by them to the Haryana Public Service Commission. within 10 days of the receipt of the names from the Director of Employment, the Haryana
228
Public Service Commission will first interview those persons and if any among them is found suitable, he will be appointed to the post. In case no name is sent by the Director Employment out of the above two categories, or if out of the names sent by the Director Employment no one is found suitable by the commission then other ex-servicemen will be considered for the post.
(The procedure for recruitment of other ex-servicemen will continue to remain as at present.")
On the basis of para (c) (ii) above, learned counsel for the respondents argued
that the instructions dated March 06, 1972 are not applicable to fill in those posts in
Class I and II of which recruitment is made through competitive examination. For
Class I and II these instructions will be applicable only if the appointment is made
otherwise than through competitive examination. Since, according to the counsel, in
the present case, the appointments to the HCS (Executive Branch) and Allied Services
are made through competitive examination, which is a major part of selection and then
followed by interview, these instructions would not be applicable in the case of the
petitioners. Consequently, all ex-servicemen are to be treated alike and not to be
given reference one over the other as contended by the learned counsel for the
petitioners.
After hearing the learned counsel for the parties, we are of the view that there
is substance in the argument of the learned counsel for the respondents. Instructions,
dated March 06, 1972 are very clear that for to filling in the posts in Class I and class-
II, the instruction would be applicable only if the posts are to be filled without
reference to any competitive examination. Since the posts in the HCS (Executive
Branch) and Allied Services are filled through competitive examination which is a
major part of selection, and is followed by interview, we are of the view that the
petitioners have no case to ask for preference over the other ex-servicemen.
We find no merit in these writ petitions which are hereby dismissed.
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229
C.W.P. No.4819/2002 D.D. 9.5.2000
The Honb'le Mr. Justice J.S.Naranga The Hon'ble Mr. Justice R.S.Mongia
Santosh - Petitioner –vs- State of Haryana & Anr. - Respondents
Violation of Instructions/Rules entails cancellation of answer books Held – Answer books of the petitioner pertaining to three subjects have been correctly cancelled on account of violation of instructions/Rules and also on account of disclosure of identity.
JUDGMENT The petitioner appeared in the examination, i.e, Haryana Civil Service
(Executive Branch)/ and other Allied Service Examination, 1996 held by the Haryana
Public Service Commission, i.e., respondent No.2. The said examination was held in
December, 1997/January, 1998. The petitioner appeared in compulsory subjects as
well as in optional subjects.
The result was declared and as per the result sheet, the marks obtained by
the petitioner had been disclosed but against two papers, i.e., General Knowledge and
Business Organisation and Management, the word ' V ' has been mentioned meaning
thereby the petitioner had violated the instructions/rules. Similarly against the subject
of Sociology, the word ' D ' has been mentioned meaning thereby the petitioner had
disclosed her identity. The petitioner was not informed as to what violation has been
committed by her and in what manner the disclosure of identity could be attributed to
her. By virtue of the violation of the instruction / rules and disclosure of identity, the
answer books of the petitioner had been cancelled relating to the above said three
subjects. The petitioner has challenged that without disclosing the true and correct
facts and without affording opportunity to her, said papers could not have been
cancelled.
Notice of motion was issued and the standing counsel for respondent
No.2, Mr.H.N.Mehtani accepted notice on our asking. We directed respondent No.2
through its counsel for producing the answer books of the petitioner pertaining to the
subjects of General Knowledge, Sociology and Business Organisation and
Management relating to the above said examination. Learned Counsel for the
Commission produced the said three papers in a sealed cover which was opened in
230
Court and we perused the papers in question. Learned Counsel for respondent No.2
also filed written statement and the stand of the respondent No.2 is that the petitioner
had used Blank Ink in the said papers which is specifically prohibited under the
regulations. Upon perusal of the said three papers, we found that in the answer book
pertaining to the subject of General Knowledge, Black Ink has been used from page 4
(internal) till the end. So far as the answer book pertaining to the subject of Business
Organisation and Management is concerned, the entire paper has been answered in
Blank Ink including the title page and similarly, the answer book pertaining to the
subject of Sociology, the entire paper has been answered in Blank Ink including part
of the title page.
It is specifically prohibited under instruction No. 3-A and it is provided
therein that the candidate shall not use any other ink except Blue or Blue Black (copy
of which has been annexed as Annexure P-1). The relevant extract of Instruction to
candidates read as under:-
"INSTRUCTION TO CANDIDATES" XX XX XX 1. XX XX XX 2. XX XX XX
3.(a) Disclosure of identity in any form like use of ink other than blue or blue black, writing of Roll Number and name at places other than specified writing of serial No. of the scripts or putting of any type of mark etc. will amount to use of unfair means and will be penalized by canceling the paper and answering Zero marks".
We are satisfied that the answer books of the petitioner pertaining to
three subjects had been correctly cancelled on account of violation of instructions/
rules and also on account of disclosure of identity. We had earlier expressed our
opinion under similar circumstances in another case i.e., Civil Writ Petition No. 775 of
2000 ( Narinder Gehleut Versus State of Haryana and another) decided on 11.2.2000.
Thus no case for interference has been made out by the petitioner.
In view of the above, the writ petition is dismissed.
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Civil Writ Petition No.2841/2000 D.D. 07.02.2002
The Hon'ble Mr. Justice Swatanter Kumar
The Hon'ble Mr. Justice Mehtab S.Gill
Rajesh Rao - Petitioner –vs- State of Haryana & Anr. – Respondents Held – Even if a candidate is granted less marks in the Viva-voce test despite the fact that he had obtained higher marks in the written test, per se does not amount to unfair treatment. It is primarily a function of the selection Committee and Courts would not normally interfere in exercise of such discretion. The writ petition is dismissed.
Cases referred: 1. AIR 1981 Supreme Court 1777 Lila Dhar –vs- State of Rajasthan 2. (1995) 3 SCC 486 Madan Lal & Ors. –vs- State of J & K & Ors. 3. (1998) SCC 694 Union of India & Anr. –vs- N.Chandrasekharan & Ors. 4. JT 2000 (Suppl.2) SC 526 Praveen Singh –vs- State of Punjab & Others
JUDGMENT In this petition under articles 226/227 of the Constitution of India the
petitioner prays for issuance of a writ of mandamus directing the respondents to adopt
procedure of competitive examination for the recruitment to the post of Deputy
Superintendent Jails / District probation officer (Group-B) in the Prisons Department,
of State of Haryana.
The Learned Counsel appearing for the petitioners relying upon the
case of Praveen Singh Versus State of Punjab and Others, JT 2000 (suppl.2) SC 526,
contended that the selection to these posts is unconstitutional and contrary to the
settled canons of law inasmuch as the appointments have been made purely on the
basis of an interview. Such action of the respondents is arbitrary. On the other hand,
Learned Counsel appearing for the State relying upon the cases of Union of India and
another Versus N. Chandrasekharan and others, (1998) Supreme Court cases 694
and Madan Lal and Others Versus State of J & K and Others, 1995 & Supreme Court
Cases 486 contended that now the appointments have already been made to these
posts. The petitioner having participated in the entire process and having failed to
succeed now is estopped from challenging the said process. It is also argued that the
appointments have been made in accordance with rules and after holding the screening
test and interview. In order to examine the merits of these contentions, it will be
relevant to refer to the facts giving rise to this petition.
232
The Haryana Public Service Commission issued advertisement No. 4 of 1996
for recruitment to four posts of Deputy Superintendent Jails/District probation officer
(Group-B) in the pay scale of Rs.2000-3200/- in the prisons Department of State of
Haryana. Along with others, the petitioners also applied for the afore-said posts in
February, 1997. On 24.7.1999 screening test was held for 100 marks for short listing
the candidates as nearly 889 candidates applied in response to the advertisement given
by the State. All successful candidates including the petitioners were called for
interview on 6/7.11.1999. According to the petitioners, the selections were made only
on the basis of the interview and no weightage was given to the marks obtained in the
screening test. The petitioner remained unsuccessful and is now challenging this
process of selection of the same candidates.
According to the petitioner fair and reasonable method of selection has not
been adopted by the concerned authorities. This action being arbitrary, infringes the
right of the petitioner of equal consideration for selection. The applicants for the
present posts are stated to be young graduates and as such judging their merit entirely
on the basis of an interview by the selection committee is not a reasonable criteria for
selection and would not be proper adjudication on the merits. Reliance is placed upon
the case of Lila Dhar Versus State of Rajasthan, AIR 1981 Supreme Court 1777.
The respondents while denying that their action is arbitrary have specifically
stated that 889 applications were received for filling up of four posts in question. The
commission held a screening test of 100 marks. The candidates who cleared the
screening test were called for interview and the Interview committee consisting of
competent persons interviewed the candidates. Petitioner appeared for the interview
but was not successful.
The appointment to the posts in question is controlled by the rules known as
Punjab Prison Service Class-II Rules, 1963. These rules amongst others provide for
the method of appointment to these posts, Rule 7 provides different mode of
appointment to these posts, Rule 7 reads as under:-
" Method of appointment:- (1) Appointments to the posts in the Service shall be made as under:-
(a) to the posts specified in section 1 or Appendix A. (i) by promotion from amongst persons holding posts specified in section II of that Appendix who possess at least five years experience of working on any of the posts specified in section II of the said Appendix in these appointed to these posts direct
233
recruitment, and at least twelve years experience of working on any executive or ministerial post in the department including at least two years satisfactory service as Deputy Superintendent in the case of persons appointed by promotion; or (ii) By transfer of deputation of an officer already in the service of any State Government or the Government of India;"
The posts in question are specified posts in Appendix 'A' of the said rules.
Under Rule 7 (1) (b) (i) the mode is direct recruitment, which reads as under:-
" (b) to the posts specified in section II of Appendix A (i) By direct recruitment; or " A bare reading of the above rules clearly indicate that the appointments to
these posts as per rules are to be made by direct recruitment. Under the instructions
issued by the Government on 1.12.1959, the candidates could be appointed to these
posts through a viva-voce test only if they obtained minimum qualifying marks in the
written test held by the commission. It appears to us that the respondents have neither
acted arbitrarily nor have violated any of the relevant rules. The procedure adopted by
the commission was clearly in consonance with the spirit of the provisions. All
applicants were subjected to the same screening test and the persons who obtained
qualifying marks in the screening test were adjudged by a viva voce test by a selection
committee. In the advertisement it was nowhere stated that marks of the written
examination as well as the interview would be clubbed together for the purposes of
selection. In any case, even if that was done, the petitioner is likely to derive benefit
thereof.
In order to judge the merits of the contention that viva voce / interview the
selection committee has framed no criteria and selection was made totally arbitrarily,
we had directed the record of the selection committee to be produced before the court.
During the course of hearing even those records were produced. The commission had
laid down definite criteria for assessing the relative merit of the candidates called for
viva voce test for these posts. The main heads of the prescribed criteria were higher
qualifications, University position at degree level, distinction in co-curricular activities
(higher marks for higher position). This in all was to consist of 75 marks and only
25 marks were given for interview. These 75 marks again bifurcated into the
following sub-heads:-
(i) Awareness, out-look and general 25 marks interest:
234
(ii) Initiative, decision making, 25 marks expression, presentation, intelligence. (iii) Poise, bearing, behaviour, 25 marks adaptability and other qualities. In face of the above rational criteria, which certainly meets the required
standards, can no way be termed as an arbitrary action on the part of the authorities
concerned. Out of 100 marks prescribed for the interview, 75 marks were allocated to
the previous achievements of the candidates in educational and extra curricular
activities. The candidates who were subjected to screening test and carried good
academic and extra curricular record and further they performed well in the interview,
alone were selected. This three staged criteria intended to adjudge the merit of each
candidate, does not offend any settled canons of law and the rules controlling such
appointments.
The reliance placed by learned counsel for the petitioner upon the judgment
of Supreme Court in the case of Praveen Singh (supra) is not of much help to the
petitioner. In that case, the selection was based entirely on oral interview and 4005
candidates had applied for 40 posts. In the rules and the instructions it was nowhere
stated that the written test was held as a screening test. On the contrary their
Lordships, on the Cumulative reading of the two requirements stated in the rules
prescribing minimum marks in the written test which gave the petitioner in that case
eligibility to appear in the interview, held that marks of both the tests and the
interview should have been clubbed together as it was no where stated by the
commission in that case. The said judgment is not applicable to the facts of the
present case. We cannot appreciate the conduct of the petitioner who voluntarily
participated in the entire selection process and in fact also participated in the
interview. Because he had not performed so well in comparison to other competitors
in his graduation level and had no great achievement to his credit the co-curricular
activities and even in the interview, he has none else to blame but himself.
The Hon'ble Supreme Court in the cases of N. Chandrasekharan and Madan
Lal (Supra) had clearly held that a candidate would be stopped from challenging the
procedure once he held participated in the entire process of Selection without
prejudice and remained unsuccessful. In fact in the case of Madan Lal, the Hon'ble
Apex Court even further held that it was not mandatory for the members of the
Selection committee to give marks on different listed topics faculty-wise, though in
the present case the original criteria adopted by the Selection committee has been
235
produced before us. Even if a candidate is granted less marks in the viva voce test
despite the fact that he had obtained higher marks in the written test, per se does not
amount to unfair treatment. It is primarily a function of the Selection committee and
Court would not normally interfere in exercise of such discretion.
This being the settled position of law and in view of the discussion above,
we do not find any justification to interfere in the impugned Selection. This writ
petition is therefore, dismissed, without any order as to costs.
***
236
C.W.P.No.16913/2002 D.D. 29.10.2002
The Hon'ble Mr. Justice Amar Bir Singh Gill
The Hon'ble Mr. Justice Viney Mittal Dr. Rajbir Singh Yadav & Others – Petitioners –vs- State of Haryana & Anr. - Respondents Held – More so, the Supreme Court in Civil Appeal No.6265 of 1997 decided on September 12, 1997 held that there is no such justification for conveying of information to the non-selected candidates of the marks obtained by them as well as for issuance of result of the selected candidates and criteria etc.
In view of the settled position, this petition is dismissed.
JUDGMENT
The petition is being disposed of finally at this stage since the issue raised in it
stands settled by this Court as well as by Apex Court.
The petitioners applied for the post of principal, Govt. Sr. Secondary School/
Sr. Specialist, HES-II and were unsuccessful. They have approached this Court for
issuance of direction to the respondents to the supply the details of their merit as well
as of the selected candidates along with the criteria adopted. Such a question was
raised in C.W.P.NO. 4969 of 1996, Renu Jain Vs The State of Haryana & Ors, which
was dismissed by this Court on January 10, 2001 holding therein that no such
direction for supplying the criteria as well as detailed marks of the successful
candidates is required to be given. Moreso, the Supreme Court in Civil Appeal No.
6265 of 1997 decided on September 12, 1997 held that there is no such justification
for conveying of information to the non selected candidates of the marks obtained by
them as well as for issuance of result of the selected candidates and criteria etc.
In view of the settled position, this petition is dismissed.
***
237
HIMACHAL PRADESH PUBLIC SERVICE COMMISSION
238
HIMACHAL PRADESH HIGH COURT C.W.P. 779/2001 D.D.10.9.2001
Hon'ble Mr. Justice C.K.Thakker, Chief Justice
Hon'ble Mr. Justice R.L.Khurana, Judge Shri Rahul Dubey - Petitioner –vs- Himachal Pradesh P.S.C. & Anr. - Respondents
The eligibility criteria like qualification, experience, age and reservation prescribed in the recruitment notification should be fulfilled as on the last date fixed for receipt of applications.
Recruitment to the post of Assistant Engineer (Civil) – Applicant stated that he belongs to OBC but as he was not possessed of OBC Certificate he may be treated as General category candidate and he would produce OBC Certificate as and when he obtained it – Applicant was considered as General category candidate he being below the cutoff marks not selected – Subsequently applicant approached the Administrative Tribunal which dismissed his application holding the applicant not eligible as he was not possessed of OBC Certificate as on the last date fixed for receipt of applications and also on the date of interview was held – In the Writ petition the High Court upheld the order of the Tribunal.
Cases referred:
1) (1993) 2 SCC 429, Dr. M.V.Nair v. Union of India and Others
2) (1998) 9 SCC 128 Seema Kumari Sharma v. State of H.P. and another
3) 2000 (2) S.L.R. 608 (SC) Bhupinderpal Singh & ors. V. State of Punjab and
others
4) SLJ 56 (SC) State of Rajasthan v. Hitendra Kumar Bhatt
JUDGMENT
Notice returnable for today. Mr. D.K.Khanna, Advocate appears and waives
service of notice on behalf of respondent No.1 and Mr. M.L.Chauhan, Dy.Advocate
General on behalf of respondent No.2. In the facts and circumstances of the case, the
matter is being taken up for hearing today.
This petition is filed by the petitioner for quashing and setting aside an order
dated August 1, 2001 in O.A.No.517 of 2001, passed by the H.P. State Administrative
Tribunal, Shimla, dismissing the Original Application filed by the petitioner and for
consequential reliefs.
239
The case of the petitioner was that he passed his Matriculation in 1992 in First
Division. He cleared B.Tech. Examination in 1999. In pursuance of the
Advertisement (Annexure P-1), issued by the H.P. Public Service Commission for
appointment as Assistant Engineer (Civil), the petitioner submitted his application.
According to the petitioner, he belongs to Other Backward Classes (OBC) Category.
Out of four posts, three posts were reserved for OBC and one for OBC Ex-
Servicemen. It was the case of the petitioner that when he submitted his application,
he was not possessed of OBC Certificate. He, therefore, stated in the application that
his case be considered as General Category candidate but as and when he would
obtain the requisite certificate of OBC, he would produce the same. Accordingly, his
case was considered as General Category candidate and decided on that basis. Since
other more meritorious candidates were available, the petitioner could not be selected.
Thereafter, the petitioner got the certificate of OBC and approached the
Administrative Tribunal for appropriate relief.
The Tribunal, inter alia, observed that the last date for filing the application
was October 16, 2000. Interviews were held on November 12, 2000 and the petitioner
obtained the certificate of OBC Category on December 5, 2001 and he submitted the
same on December 7, 2001. Thus, the date on which the application was submitted,
he was not possessed of OBC certificate. Similarly, the date on which the Interviews
were held, he was not in possession of such certificate and, therefore, he could not be
said to be eligible to be considered against the OBC category. In these circumstances,
the Tribunal dismissed the Original Application. The said order of the Tribunal is
challenged in the present writ petition.
The learned counsel for the petitioner contended that two things are different
i.e. (i) where a candidate is otherwise neither eligible not fulfilling requisite
qualifications; and (ii) where he does not possess necessary certificate though
otherwise eligible. According to the learned counsel, in the former class of cases,
applicant cannot be considered eligible. In the later class of cases, however, since he
is eligible, he should be considered and be granted benefits. By denying the benefits
to the petitioner, illegality has been committed by the Public Service Commission as
well as by the authorities. It was, therefore, submitted that the Tribunal has committed
an error of jurisdiction in dismissing the Application filed by the petitioner.
Strong reliance was placed on a decision of the Hon'ble Supreme Court in Seema
Kumari Sharma (Mrs) v. Sate of H.P. and another, (1998) 9 SCC 128. In that cases,
Status Certificate could not be produced by the petitioner at the relevant time. It
240
related to training programme in Junior Basic Teachers. Ten marks were earmarked
for a candidate belonging to IRDP family. The requisite certificate showing the
candidate belonging to IRDP category could be produced only before the Supreme
Court when the matter reached there. The Apex Court held that when the petitioner
belonged to that category and applied as such in the said category but since obtaining
of certificate was not within the power of the petitioner she could not produce the
same. She was, therefore, granted relief.
The learned counsel for the applicant contended that the ratio laid down in
Seema Kumari Sharms (Mrs.) applies to the facts of the present case. Here also,
petitioner could not get the certificate because it was not within his control and hence,
he also deserves to be granted benefits. The learned counsel also submitted that in the
past also, the petitioner was not granted OBC Certificate and he had to approach this
Court. Only thereafter, the requisite certificate was given to him. The Counsel,
therefore, submitted that the petition deserves to be allowed by issuing necessary
directions.
Mr. D.K.Khanna, learned counsel for respondent No.1 – Commission,
contended that in the instant case, the petitioner himself applied as a General Category
candidate as in the application form it was stated that though he belonged to OBC
category, his case for the time being could be considered as a General Category
candidate. In the representation, however, the petitioner submitted that as and when
he would obtain certificate, he would produce the same. The learned counsel
submitted that the terms and conditions in the advertisement are amply clear. He, inter
alia, relied on the following conditions.
"Category once claimed in the application form will not be changed later on.
Applicants should possess the requisite qualifications and must
furnish proof thereof beside proof for age and category claimed by enclosing photocopies of these certificates by the last date for the receipt of applications, i.e. 16.10.2000. Incomplete applications are liable to be rejected."
The counsel also relied on a decision of the Supreme Court in Dr. M.V.Nair v.
Union of India and others, (1993) 2 SCC 420, wherein it was observed that the
relevant date for assessing the requisite qualification would be the last date for
receiving the application, unless the notification calling for applications itself specifies
another date. Similarly, in Bhupinderpal Singh & ors. Etc. v. State of Punjab and
241
others, 2000 (2) S.L.R. 608 (SC) it was held that the eligibility criteria shall be applied
with reference to the last date of the receipt of application by the competent authority.
Deprecating the practice, prescribing different dates, in paragraph 14, their
Lordships observed:
"In view of several decisions of this Court relied on by the High Court and referred to herein above, it was expected of the State Government notifying the vacancies to have clearly laid down and stated the cut off date by reference to which the applicants were required to satisfy their eligibility. This was not done. It was pointed out on behalf of the several appellants/petitioners before this Court that the practice prevalent in Punjab has been to determine the eligibility by reference to the date of interview and there are innumerable cases wherein such candidates have been seeking employment as were not eligible on the date of making the applications or the last date appointed for receipt of the applications but were in the process of acquiring eligibility qualifications and did acquire the same by the time they were called for an appeared at the interview. Several such persons have been appointed but not one has challenged their appointments and they have continued to be in public employment. Such a loose practice, though prevalent, cannot be allowed to be continued and must be treated to have been put to an end. The reason is apparent. The applications made by such candidates as were not qualified but were in the process of acquiring eligibility qualifications would be difficult to be scrutinized and subjected to the process of approval or elimination and would only result in creating confusion and uncertainty. Many would be such applicants who would be called to face interview but shall have to be returned blank if they failed to acquire requisite eligibility qualifications by the time of interview. In our opinion the authorities of the State should be tied down to the principles governing the cut off date for testing the eligibility qualification on the principles deducible from decided cases of this Court and stated herein above which have not to be treated as the settled service jurisprudence."
In State of Rajasthan v. Hitendra Kumar Bhatt, SLJ 56 (SC), a person acquired
qualification at a subsequent stage. At the time of interview, he was not eligible. But
under the interim order of the High Court he was interviewed. By passage of time, he
was confirmed on the said post. But the matter was taken up by the State of Rajasthan
to the Supreme Court. The Supreme Court held that it was true that interview was
conducted by the Selection Committee but it was on the basis of the Interim Relief
passed by the High Court though the petitioner was not eligible. Repelling the
contention of the learned counsel for the petitioner that he was successful in getting
himself selected and was also confirmed, the Supreme Court held that the appeal was
liable to be allowed by holding that the petitioner was not eligible and could not be
given benefit on the basis of the interim relief granted by the High Court.
In the light of the above discussion and also the fact that when the petitioner
himself stated that he should be considered in General Category, the ratio laid down in
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Kumari Seema Sharma (Ms), would not apply and treating the petitioner as a General
Category candidate, no illegality was committed by the respondent Commission.
Since the order passed by the Administrative Tribunal does not suffer from legal
infirmity, it does not call for interference by this Court in exercise of powers under
Articles 226/227 of the Constitution of India. The petition deserves to be dismissed
and is accordingly dismissed. Notice discharged. No costs.
CMPs No.1257 and 1258 of 2001
In view of the dismissal of the main writ petition, these applications have
become infructuous and are disposed of as such.
***
243
HIMACHAL PRADESH ADMINISTRATIVE TRIBUNAL O.A. 1582/2001 D.D. 2.5.2003
Hon'ble Mr. V.K.Bhatnagar, Member (A)
Shri Ashmi Ram – Applicant –vs- Himachal Pradesh P.S.C. & Anr. - Respondents The ratio of the above case has been followed in this case. The applicant appeared for H.P. Administrative services combined competitive examination 1999 claiming reservation under SC category – As he did not produce the SC Certificate along with the application his application was rejected – He approached H.P. Administrative Tribunal - As per interim order of Tribunal the applicant appeared for the examination – As he did not produce the SC Certificate at the time of appearing for the examination he was considered as General category candidate – His marks being below the cutoff marks he was not selected – Subsequently on coming to know that some selected SC candidates had secured marks less than himself he filed one more application before the Tribunal – By that time SC selected candidates were appointed – The Tribunal dismissed the application on the ground that the applicant had not filed SC Certificate along with his application before the last date prescribed for submission of applications. Cases referred:
1) 1982 (2) SLR 478 Rangaswamy versus Kerala P.S.C.
2) 1996 (2) SLR 868
3) AIR 1997 S.C. 1693 (Mrs. Seema Kumari Sharma versus State of Himachal
Pradesh
4) 1999 (1) SLC 246 Gunjan Kapoor versus Stateopf Himachal Pradesh & Others
5) (1999) 1 SCC 330 Sushma Suri versus Govt. of Delhi & Anr.
JUDGMENT
The facts of the case, in brief, are that the applicant had submitted his
application for posts in H.P. Administrative Services combined competitive
examination 1999 under the reserved quota for scheduled caste category, though he
did not annexe a copy of scheduled caste certificate with this form. The applicant
mentioned in the application form that the schedule caste certificate would be
submitted later. The candidature of the applicant was rejected by the commission on
two grounds namely:- (i) incomplete application form, (ii) non –furnishing of
schedule caste certificate and less examination fee, vide Annexure A-1 dated 13-07-
2000. Aggrieved with this decision of the commission, the applicant filed original
application No.2334/2000 praying, interalia for a directions to the respondents to
accept his candidature and to allow him to appear in the said competitive and to allow
244
him to appear in the said competitive examination. This Tribunal on 18-08-2000
passed interim order in this original application directing the commission to allow the
applicant to appear in the written examination scheduled to be held on August 21,
2000 on applicant’s furnishing his certificate that he belongs to scheduled caste
category. It was also ordered that the result of the applicant be not declared till
directed by the Tribunal. A copy of this order has been annexed as Annexure A- 2
with this original application. The case of the applicant is that he submitted the said
certificate to the commission and was allowed to appear in the written examination
against roll No.41263. However, on 30-04-2001, original application No.2834/2000
was disposed of and following order was passed:-
“Vide our order dated18-08-2000, the respondent No.1 was directed to allow the applicant provisionally to appear in the Himachal Administrative Service, written examination scheduled to be held on August 21, 2000 on applicant’s furnishing his caste certificate that he belongs to Scheduled Caste. The respondent No.1 has moved and Misc. application No.1031/2001 stating that the result was declared on 8-03-2001. The applicant could not come him for the interview and could not qualify the written examination for Himachal Pradesh Administrative Services, 1999. Therefore, the applicant could not be called for interview. In view of the above position, the application has been rendered infructuous and disposed of as such”
2. Later, the applicant received his result card for his performance in the said
competitive examination as per Annexture A-5. According to this result card, the
applicant had secured 524 marks out of 850. The applicant also came to know that two
other candidates namely Ms. Rekha Kumari and Dile Ram who also belonged to
scheduled caste category, had been called for interview although their performance in
the written examination was below that of the applicant. Aggrieved on that account the
applicant has filed the present original application. The grievance of the applicant is
that respondent No.1 had given wrong information to the Tribunal that the applicant
could not come in merit in as much as the merit of the applicant was considered in the
general category and not in the reserved category. That the merit of the applicant was
higher than those selected in the scheduled caste category. In this background the
present original application has been filed with the prayer that the entire process
undertaken by the respondent commission for making recommendations to various
posts in Himachal Pradesh Administrative Services, 1999 be declared illegal and be
quashed and set aside. In the alternative, the respondent – commission may be directed
to interview the applicant and recommend him against a suitable post if he merits
success.
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3. This original application has been opposed by respondent No.1 while
respondent No.2 has not filled appropriate reply. The grounds taken by respondent
No.1 in opposing the original application are that the selected candidates are necessary
parties in this original application but they have not been impleaded as respondents.
Secondly, the applicant has not submitted by the last date, the scheduled caste
certificate which was required to be submitted along with other certificates, by Feb29
2000, though the applicant claimed to be considered under scheduled caste category.
That these documents under scheduled caste category. That these documents should
have been enclosed with the application form particularly in view of note (ii) given at
page 26 of the application form which reads as under:-
“(ii) Candidates are warned that if an application is not accompanied by any one or more or those of the documents (i) to (ix) mentioned here in above which are applicable to him without a reasonable explanation for its/their absence having been given the application is liable to be rejected and no appeal against its rejection will be entertained.
4. That in view of the various judgments of the Hon’ble Apex court, the applicant
had to show his eligibility on the last date of receipt of application. Therefore, the
application of the applicant had been rightly rejected but he had been allowed to
appear provisionally in the said examination in view of the interim order passed by
this Tribunal on 18-08-2000 in O.A. 2834/2000, though the applicant did not submit
scheduled caste certificate even at that stage. In these circumstances there was no
alternative with respondent No.1 than to treat the applicant as a General Category
candidate the applicant could not come up in the merit in the general category in the
written test and therefore, was not called for interview. I t has been prayed that this
original application may therefore, be dismissed, being without merit.
5. The learned counsel for the parties have been heard and pleading have been
gone into.
6. The argument of the learned counsel for the applicant is that the order of the
Tribunal passed in O.A. 2834/2000 on 18-08-2000 was conditional order in as much
as it had been directed that respondent No.1 would allow the applicant provisionally to
appear in the Himachal Pradesh Administrative Services examination scheduled to be
held on August 21,2000 on applicant’s furnishing certificates that he belongs to
scheduled caste category. The learned counsel has argued that though he has no record
or proof in support of the statement that the applicant has submitted scheduled caste
certificate before he was given admission letter to enable him to appear in the written
246
examination, yet the very fact that respondent No.1 had allowed the applicant to
appear in the said examination vide Annexure R- II with their reply, in the scheduled
caste category and has issued Roll number, shows that applicant had submitted
scheduled caste certificate. The learned counsel argued that if the applicant had not
submitted the scheduled caste certificate, respondent No.1 was under no obligation to
allow the applicant to appear in the said examination in compliance to order dated 18-
08-2000 referred to earlier. That because the applicant belongs to scheduled caste
category, his merit in the written examination had to be considered in that category
only. The learned counsel has also invited attention to Note-i below instruction no.17
appended with the application form for the Himachal Pradesh Administrative Services
combined Competitive Examination, 1998. A copy of this document has not been
placed on record by the learned counsel but had been made available during the course
of arguments. The said note reads as under:-
“Note (i) copies of the certificate required to be attached with the application may be attested either by a gazetted officer over his dated signature and the stamp of his office or by the candidate himself. The candidates who qualify for interview for the viva-voce test on the result of the written examination will be required to submit the originals of the certificates on or before the day of the viva-voce test. Should a candidate fails to do this he will be liable to be debarred from the viva-voce test or to the penalty of cancellation of his candidature”.
7. On the basis of the above note, it has been argued by the learned counsel that
applicant could himself attest the scheduled caste certificate and that he had attested
the certificate himself. The learned counsel also invited attention to instrction-(1)
issued to candidates vide Annexure A-6. The relevant part of this instruction is as
follows:-
“The candidate must note that the commission will take up the verification of eligibility condition i.e., age, educational qualification, scheduled caste/scheduled Tribe /OBC, wards of Freedom Fighters of H.P. / Ex- Service man claim etc., with reference to original documents only at the time of interview for personality test of candidates who qualify on the result of written part of the examination.”
8. On the basis of the above instruction the learned counsel has argued that the
applicant was required to produce the original certificate only at the time of interview
and that non–submission of original certificate would not entitle the respondents to
consider the applicant in the general category for determining the merits in the written
test. It has further been argued that respondents had first opportunity to point out that
the applicant had not submitted the scheduled caste certificate when they had to issue
admission card and therefore, at a later stage respondent No.1 cannot raise this
247
objection. The second occasion on which such objection could have been taken that
respondent No.1 moved MA No. 1031/2001 in O.A. No.2834/2000 praying that
respondent No.1. That since respondent No.1 has failed to point out that the scheduled
caste certificate had not been filed by the applicant on both these occasions, it shows
that this certificate had been submitted before obtaining “Admission letter” for the
written examination. The learned counsel has also referred to the judgment of the
Hon’ble Apex court in the case of 1996 (2 ) SLR 868 wherein the Hon’ble Apex court
has held that the constitutional right of the candidates of scheduled caste and other
category cannot be taken lightly. The learned counsel has also referred to the
judgment of the Hon’ble Apex court reported in AIR 1997 S.C. 1693 (Mrs. Seema
Kumari Sharma versus State of Himachala Pradesh) wherein the Hon’ble Apex court
has accepted IRDP certificate during the course of hearing of appeal and had allowed
the benefits and on the basis of this IRDP certificate and argued that since the
applicant could submit the scheduled caste certificate even after the expiry of the last
date of the application form the applicant be considered in the scheduled caste
category.
9. At this stage a reference may also be made to the fact that the applicant had
filed WA No.893/2003 with the prayer that Ms. Reema Bhatat, Mr. Sandeep Kumar
Dhawal, Sh. Rakesh Kumar Bhartia, Ms. Rekha Kumari and Mr. Dila Ram who had
been selected after interview, be also impleaded as respondents in this original
application. However, on 29-04-2003 the learned counsel made a statement that he
wanted to withdraw this MA. On 29-04-2003 forms order was passed in this M.A.
“The learned counsel for the applicant / petitioner wants to withdraw this M.A. on the instruction of his client who is present today in the court. MA as such is dismissed having been withdrawn. M.A. stands disposed of.”
10. While arguing the matter on April 30,2003, the learned counsel in the above
background submitted that he does not want to press his prayer that the entire process
undertaken by respondent – Commission for making recommendations to various
posts in Himachal Pradesh Administrative Services, 1999, be declared illegal and
quashed and set aside. However, the learned counsel pressed the alternative relief.
11. The learned counsel for respondent No.1 has produced the original copy of
form filled in by the applicant and invited our attention to the scheduled caste
certificate which was required to be attached with the application form for
consideration of his candidature in the scheduled caste category. Referring to this
document, the learned counsel submitted that the applicant had not attested by him or
248
a gazetted officer. Rather the applicant on the Proforma of the scheduled caste
certificate wrote as under:
“ Self attested sd.
Will be produced later on”
12. The learned counsel argued that it is evident from the original record that the
applicant had not submitted this certificate on the last date fixed by the commission
for submission of the application form and on this point the learned counsel has
referred to the judgment of the Hon’ble High court of H.P. in the case of Gunjan
Kapoor versus state of Himachal Pradesh and others reported in 1999(1) SLC 246 and
has submitted that in view of the Judgment of the Hon’ble High court of H.P. the
applicant cannot be allowed to submit the scheduled caste certificate after the
prescribed date is over.
13. The learned counsel also argued that it was necessary for the applicant to
implead all the necessary parties. That the selected candidates had already been given
appointments by the respondent No.2 and in that situation no post has available
against which the applicant can not be considered in the interview. In this connection,
the learned counsel invited attention to the reply filed to this original application. In
the preliminary submissions of the reply affidavit verified on July 31,2001, the
respondent No.1 has mentioned as under:-
“That the original application is not maintainable as the applicant has not imp leaded the selected candidates as party. Respondents were necessary parties and are entitled to be heard in view of the law declared in the following cases:-
1995 Suppl. 1 SCC 179 AIR 1998 SC 331 Vijay Singh versus H.P. Public Service Commission O.A. No.176/2000.”
14. The learned counsel further argued that the applicant in view of this objection
had filed MA No.893/2003 and had himself prayed that the selected candidates be imp
leaded as respondents as these persons were necessary parties in this original
application as they were the persons who might be affected by the final decision of the
said case. It was, therefore, prayed in this original application that these persons be
allowed to be arrayed as respondents. However, as mentioned earlier, on the
instructions of the applicant, the learned counsel has withdrawn this MA on 29-04-
2003. The learned counsel argued that in the absence of these necessary parties the
applicant was not entitled for any relief. Yet another argument taken by the learned
counsel is the commission has prescribed submission of various certificates/documents
249
under the provisions contained in Rule 11(i) of the Himachal Pradesh Administrative
Services etc., Examination Rules which provides that “applications for permission to
sit at the competitive examination will be called for by the commission and shall be
made in the manner and form prescribed, and shall be made in the manner and form
prescribed, and accompanied by such documents/papers as may be required by the
commission in this behalf”. The learned counsel argued that under Rule 11(ii) © the
scheduled caste candidates are entitled to pay only 1/4th of the fee prescribed for
general candidates. The applicant was entitled to be considered under the scheduled
caste category on payment of this fee only if he could satisfy his status as a scheduled
caste candidates by producing the scheduled caste certificate. In this case the required
certificate was not attached with the application form and so the applicant could not be
considered under the scheduled caste category. The learned counsel also referred to
the judgment of the Division Bench of the Hon’ble High court of Kerala in the case of
Kerala Service Commission verses Saroj Nambihar, reported in 1978 vol.2 ILR
(Kerala Series) 241, wherein the Hon’ble High Court has held that the Public Service
Commission was within its competence and had the jurisdiction to determine whether
the application submitted by the applicant was valid one in the sense of its having
conformed to the stipulations contained in the notification and to reject the candidature
where the prescribed conditions had not been made. The learned counsel also referred
to the judgment of the Hon’ble Apex court in the case of Rangaswamy verses Kerala
Public Service Commission reported in 1982(2) SLR 478 wherein the above referred
judgement was approved by the Hon’ble Apex court. The Hon’ble Apex court in this
case observed as under:-
“The Public Service Commission is bound by the conditions and stipulations contained in the Notification / Advertisement inviting applications, it will not be within the privince of this court to issue directions to the commission whittle down the rigour of the conditions and stipulations. The Commission will be within its right in rejecting the applications, if the applications are not in strict compliance within the conditions and stipulations contained in the Advertisement/ Notification………………. The Public Service Commission is a high Constitutional authority. This court will normally be loathe in interfering with its decision unless strong grounds are made out like malafides etc.,”
15. Yet another case referred to by the learned counsel was decided on 28-06-
2002 by this tribunal on O.A. 1089/2002 titled as Raj Kumar versus H.P. Public
Service Commission on the basis of above referred decision of the Hon’ble Apex
court.
250
16. It was pleaded that once the applicant had not submitted the scheduled
caste certificate along with original application form, his candidature had rightly been
rejected by the Commission vide Annexure A-1 dated July 13, 2000. However, in
view of the interim order passed by this Tribunal the applicant had been allowed to
appear provisionally in the written examination though the applicant had not submitted
the required scheduled caste certificate as per directions of the Tribunal. The learned
counsel repelled the suggestion of the learned counsel for the applicant that because
the applicant had been allowed to appear in the written test in compliance to the
interim order passed by the Tribunal on 18-08-2001 in case he submits his scheduled
caste certificate, it can be presumed that the applicant had submitted the scheduled
caste certificate. It was argued that no such certificate had been filed by the applicant
at that stage or even subsequently. That even if he had filed such a certificate it would
not help him became the certificate was required to be filed before the last date along
with the application form for the Himachal Pradesh Administrative Services etc.,
examination. It was argued that the eligibility of candidate has to be seen on the basis
of documents submitted on or before the last date.
17. The learned counsel further referred to Note- 1 below instructions-17 of the
“Instructions to candidates” attached with the application form and submitted that this
note is only to the effect that the applicant could attest the required certificates
himself. However, in the present case Scheduled caste certificate which might have
been attested by him. In the end the learned counsel referred to the judgment of the
Hon’ble Apex court in case of Sushma suri versus Govt. of National capital Territory
of Delhi and another reported in (1999) 1 SCC 330, in civil appeal No.302/97 against
judgment, of the Hon’ble High court of Delhi. The Hon’ble Apex court held that the
view taken by the Hon’ble High court that the applicant was not entitled to be
considered for appointment could not be upheld. However, this civil appeal had been
disposed of with the following observations:-
"However we are not in a position to give any relief to the applicant before us now because when she commenced this litigation, recruitment process was still going on and it has gone too far ahead. Now that the same is complete and the selected candidates have already been appointed and they have reported for duty at different places and they are not impleaded as parties in these proceedings, it would not be proper to upset such appointments. All that we can now do is to direct the authorities concerned including the High court and Government to process the applications for recruitment of candidates in future in the light of the position as explained above. If there are any pending recruitments, the view taken by us shall be applied to them also. The appeal, therefore, stands disposed of in the manner stated above.”
251
18. The learned counsel submitted that in the present case before this Tribunal,
appointments had already been made as per notification dated June 29,2001 as
appended with MA No.2194/2001 in this original application and these selected
persons had also joined thereafter. As in the case of Mrs. Sushma Suri, the present
applicant had also not impleaded the new appointees as respondents in this original
application and, therefore, in terms of the judgment of the Hon’ble Apex Court in the
case of Sushma Suri, the applicant is not entitled for any relief.
19. We have gone through the pleading and the arguments of all the counsel. We
are of the concerned view that all these persons who have been appointed after the
recommendations of the commission were necessary parties to this original
application. This Original application is therefore, bad for non-joinder of necessary
parties.
20. In view of the observations of the Hon’ble Apex court in the case of
Rangaswamy verses Kerala Public Service Commission, reported in 1982(2) SLR 472
referred to earlier, the action of the Commission in rejecting the candidature of the
applicant was within its jurisdiction and competence as the commission is bound by
conditions of the appointments as given in the advertisement /notification. The
applicant has himself admitted that he had not attached the scheduled caste certificate
either attested by himself or by a gazetted officer as required by the commission under
various instructions and in terms of the judgment of the Hon’ble High Court of
Himachal Pradesh reported in 1991(1) SLC 246 titled as Gunjan Kapoor versus State
of Himachal Pradesh, these certificates cannot be accepted after the expiry of last date.
The learned counsel has referred to the Judgment of the Hon’ble Apex court in case of
Mrs. Seema Kumari Sharma versus state of Himachal Pradesh reported in AIR 1997
supreme court 1698 in which case on the directions of the Hon’ble Apex court, the
appellant had produced the record when it was found that the appellant had made the
IRDP certificate as part of the record. This certificate had nor been produced before
the competent authority along with her application but in view of the fact that the
serial number of the IRDP family was ascribed on this certificate, her failure to furnish
certificate along with the applicant was not found by the Hon’ble Apex court to dis-
entitle her claim for status of consideration of award of 10 marks. However, as argued
by the learned counsel for respondent No.1, the applicant cannot get benefit from this
case because facts of this case are different. The scheduled caste certificate in question
had been called for by the Commission under Rule 11of the statutory rules known as
the Himachal Pradesh Administration Services Rules. Further, by virtue of this
certificate the applicant was entitled to appear in the examination only by paying 1/4th
252
of the fee though the scheduled caste certificate was not attached with the application
form. These facts differentiate the case of Mrs. Seema Kumari Sharma versus state of
Himachal Pradesh reported in AIR1997 S.C. 1693.
21. We have also gone through the judgment of the Hon’ble Apex Court in the
case of Gayathri laxmi Bapurao Nagpure versus State of Maharastra and Others
reported in 1996(2) SLR 868 and find that, the judgment is not applicable in the facts
of the present case. Thus, it is of no consequence whether the applicant had submitted
or not submitted the scheduled caste certificate when he was provisionally allowed to
sit in the written examination.
In view of the fact that the application submitted by the applicant for the
Himachal Pradesh Administrative Services etc., Examination 1999, was not
accompanied by the Scheduled caste certificate and this certificate had not been
submitted before or on the last date prescribed for submission of application, we hold
that even on merit the applicant could not be considered under the scheduled caste
category. His merit has rightly been considered in the general category. Hence there is
no merit in this original application. This original application is, therefore dis-allowed
with no orders as to cost.
***
253
1999 (1) SLC 246 Gunjan Kapoor versus State of Himachal Pradesh
Caste Certificates cannot be accepted after the expiry of last date.
***
254
JHARKHAND PUBLIC SERVICE COMMISSION
255
JHARKHAND HIGH COURT AT RANCHI
W.P.(S) Nos.289 & 322 of 2003 D.D. 22.1.2003
The Hon'ble Mr. Justice S.J.Mukhopadhaya
Md. Shamim Anjun & Anr. – Petitioners Versus The State of Jharkhand & Others – Respondents The petitioner in the first case has challenged the cutoff date fixed for calculating the age in the advertisement for the combined competitive examination and the petitioner in the second case has sought for relaxation of upper age limit of 35 years for General categories upto 38 years. Held – The power to relax age for appointment or the power to fix a maximum age for appointment or the power to fix a cutoff date for appointment is vested with the Appointing Authority and both the writ petitions are dismissed.
ORDER
In both the cases as almost common question involved they are heard together
for disposal.
The Jharkhand Public Service Commission (JPSC for short) issued an
advertisement for Combined Competitive Examination in the newspaper on 2nd
January, 2003 calling for application to appear in the JPSC Combined Civil Services
Preliminary Examination, 2003 for appointment in Jharkhand Civil Service and some
other services, the minimum and maximum age limit of 22 and 35 respectively was
fixed for general candidate.
The petitioner Md. Tahari of WP (C) No. 322 of 2003 has challenged sub-
clause (iv) of clause (a) of the aforesaid advertisement No.11/2002-03 whereby the cut
off date calculating the age has been fixed as 1st August, 2002.
The other petitioner Md. Shamim Anjum of WP (S)No. 289/2003 has prayed
for direction on respondents to give relaxation of three years in the upper age limit of
35 years for general categories making it to 38 years.
One of the grounds taken is that the State of Jharkhand has not made any
appointment since last two years. No such employment have been given to the
candidates who were eligible in the year 1999. The other ground, as taken by
petitioner Md. Shamim of WP(S)No. 289 of 2003 is that the present Combined
Competitive Examination is continuity of the Combined Competitive Examination
256
held by the Bihar Public Service Commission (BPSC for short). In earlier competitive
examination always a retrospective cut off date used to be fixed to calculate the age.
For example 1st August, 1994 was the cut off date fixed in the 40th Combined
Competitive Examination held in the year 1997; 1st August, 1995 was the date fixed
for 41st Combined Competitive Examination held in the year 1998 and similarly 1st
August, 1996; 1st August, 1997 and 1st August, 1998 respectively in the subsequent
examination. According to the petitioner such cut off date should have been followed
in the Jharkhand State fixing 1st August, 1999 as the date to count the age for the 1st
Combined Competitive Examination held by the Jharkhand Public Service
Commission. But such submission cannot be accepted as the po9wer to relax age for
appointment or the power to fix a maximum age for appointment or the power to fix a
cut off date for appointment is vested with the Appointing Authority/The State of
Jharkhand and not with the High Court.
In the circumstances, there being no merit, both the writ petitions are
dismissed.
***
257
W.P.(C) No.522 of 2003 D.D. 28.2.2003
The Hon'ble Mr. Justice S.J.Mukhopadhaya
Ganesh Prasad Sah - Petitioner Vs. The State of Jharkhand & Ors. – Respondents Held – The High Court has no jurisdiction to fix a cutoff date for calculation of upper age limit under Article 226 of the Constitution.
ORDER
The petitioner has challenged the cut-off date to count age limit as prescribed
in advertisement No. 12/2002-03 for appointment to the post of Junior Engineers &
Assistant Engineers. The main plea taken by the petitioner is that the posts are being
filled-up after about 10 years and the petitioner will not get opportunity to appear in
the forthcoming examination.
Admittedly, the petitioner is a member of other backward category for which
maximum age limit of 37 years have been prescribed. Even if it is accepted that the
post were last filled-up about 10 years back in that case it will also be presumed that
the petitioner got opportunity to make application being about 27 years of age at that
stage.
The difficulty is that the High Court has no jurisdiction to fix a cut-off date for
calculation of upper age limit under Article 226 of the Constitution of India. Such
power is only vested with the appointing/competent authority. In this background,
there being no other infirmity or illegality, this Court cannot alter the cut-off date
under Article 226 of the Constitution of India.
There being no merit, the writ petition is dismissed.
***
258
W.P.(S) NO.5341 of 2002 D.D. 7.4.2003
The Hon'ble Mr. Justice S.J.Mukhopadhaya
Rajiw Kumar – Petitioner Versus The State of Jharkhand & Others – Respondents The petitioner has challenged the recruitment notification dated 21.8.2002 relating to appointment to the post of Director of Fisheries. The main contention of the petitioner is that the Director of Fisheries is a promotional post of Class-I Officers of Fisheries Department and cannot be filled up by direct recruitment. Held – In view of Bihar Animal Husbandry and Fisheries Service Recruitment Rules, 1993, which is applicable to the State of Jharkhand, in view of Section 84 of the Bihar Reorganisation Act 2000, the post of Director of Fisheries is a cadre – non-selection post, required to be filled up by promotion on the basis of seniority cum merit from amongst the incumbent of Class –I posts having working experience of at least 10 years in Class-I. The impugned advertisement being against the provisions of law is set aside with a direction to fill up the post of Director of Fisheries as per 1993 Rules.
ORDER
This application has been preferred by the petitioner against Advertisement
No. 3/02-03 published by the Jharkhand Public Service Commission, Ranchi (JPSC)
in newspaper "Prabhat Khabar" on 21st August 2002 so far it relates to appointment
the post of Director of Fisheries, Fisheries Department.
By the aforesaid Advertisement applications have been called for from the
persons within the age group of 55 years having requisite qualification of M.Sc
(Fisheries) published research papers or Essay having 20 years of experience for
appointment against the post of Director, Fisheries in the pay scale of Rs. 12000-
16500/-.
2. The main plea taken by the petitioner is that the post of Director of Fisheries is
a promotional post of Class-I Officers of Fisheries Department and cannot be filled up
by direct recruitment.
On the other hand, according to the respondents, the post can be filled up by
Direct Recruitment.
The only question to be determined in this case is whether the post of Director
of Fisheries Department of Government of Jharkhand is a promotional post of Class-I
Officers of Fisheries Department of a post to be filled up by direct recruitment?
259
3. The Respondent – State of Jharkhand have not made it clear whether the post,
in question, is a promotional post or not, though the following stand has been taken by
them:-
A. " Application from suitable candidates should be invited through open advertisement.
B. Candidate should hold at least a M.Sc Degree in Fisheries
Science from a recognized University,
C. He should have a minimum service experience of at least 20 years out of which at least five years experience should be on Class-I post. Only such candidate should apply who were presently working in the pay scale of Rs. 14,300-18,300/- or in a scale immediately below this scale. Persons working in the pay scale of Rs. 16400-450-20000/- could also be considered.
D. The following qualifications would also be desirable and
necessary weightage would be given for them. Research paper, Discussion or same publication accredited to the candidate. Administration experience, if any: Working knowledge of computers".
4. Further case of the State of Jharkhand is that the post, in question, was earlier
advertised on 17th August 2001, but no suitable person having applied the post has bee
re-advertised by the JPSC. In the Advertisement No. 3/02-03, the JPSC lowered down
the scale of pay of the post of Director of Fisheries of their own from Rs. 14300-
18300/- to Rs. 12000-16500/-.
5. The petitioner has relied on a statutory rule known as Animal Husbandry &
Fisheries (Fisheries) Service Recruitment Rules, 1993 framed by the Governor of
Bihar under provision to Article 309 of Constitution of India, gazetted on 14th January
1993 (hereinafter referred to as the 1993 Rules), in support of his claim.
6. According to the JPSC, the 1993 Rules having not adopted by the State of
Jharkhand, it cannot be relied upon. In absence of any rule, earlier an advertisement
was published and in pursuance of which only 12 persons, including the petitioner
applied.
7. In view of aforesaid stand taken by the JPSC, it is required to be determined
whether a rule framed by the then State of Bihar, after reorganization of the State
remains in force in the successor State of Jharkhand or not. To answer the aforesaid
question, it is necessary to notice sections 84 and 85 of Bihar Reorganization act,
2000 which reads as follows:-
260
"84. Territorial extent of laws. The provisions of part II of this Act shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to the State of Bihar shall, until otherwise provided by a competent Legislature or other competent authority be construed as meaning the territories within the existing State of Bihar before the appointed day.
85. Power to adapt law. For the purpose of
facilitating the application in relation to the State of Bihar or Jharkhand of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, by order, make such adoptions and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority.
Explanation. In this section, the expression
"appropriate Government" means as respects any law relating to matter enumerated in the Union list, the Central Government, and as respects any other law in its application to a State, the State Government.
8. From the plain reading of section 84, it will be evident that the reorganization
of State shall not affect any change in the territories to which any law was in force
immediately before the appointed day, until otherwise provided by a competent
Legislature or other competent authorities.
It preserves the continuance of the laws till State Legislature of the competent
authority alters the law. Section 84 is to provide for the interregnum between the
reorganization of the State and the time by which the Legislature of such State suitably
amend, alter or modify such laws. Such provision has been made with an objective to
keep alive the laws and regulations in the territories of successor State.
9. Under section 84, the laws of the combined State continues in both the
successor state of Bihar and Jharkhand until otherwise provided by 'a competent
Legislature' or the 'competent authority', but the power of adoption of laws with
amendment has been delegated to both the successor State of Bihar and Jharkhand
under section 85 of the Bihar Re-organization Act, 2000.
10. For example, a law which requires no modification, may be allowed to
continue by the successor State until otherwise provided by a 'competent Legislature'
or the 'competent authority' under section 84, but if the state Government intends to
modify such law, may do so, after adoption of such law under Section 85 of the Bihar
Reorganization Act, 2000.
261
11. In view of aforesaid provision of law (section 84) even if the 1993 Rules has
not been adopted with modification by the Government of Jharkhand under section 85,
the 1993 Rules continues to be force in the territories of both the successor State of
Bihar, as also Jharkhand.
12. As per Schedule I of the 1993 Rules, the post of Director of Fisheries is a cadre
– non-selection post, required to be filled up by promotion on the basis of seniority-
cum-merit, from amongst the incumbent of Class-I posts having working experience
of at least 10 years in Class-I, such as Regional Director of Fisheries, Joint Director of
Fisheries, Principal or equivalent post, to be selected by a Departmental Promotion
Committee headed by the Chairman of Public Service Commission or its nominated
member and other members i.e. Secretary, Fisheries Department; Personnel Secretary
or his nominated representative and a SC/ST Officer nominated by the Personnel
Department not below the rank of Joint Secretary.
13. The statutory Rule 1993 being specific, it is not open to the Respondents to fill
up the post of Director of Fisheries, Fisheries Department, Jharkhand by direct
recruitment nor the JPSC has jurisdiction to lower down the scale of pay of the post as
allowed by the State.
14. For the reasons aforesaid, the Advertisement No. 3/02-03 so far as it relates to
the post of Director of Fisheries, Fisheries Department, Jharkhand being against the
provisions of law, it is declared illegal and is set aside.
15. The Respondents are directed to fill up the post of Director of Fisheries,
Fisheries Department, Government of Jharkhand as per 1993 Rules, preferably within
three months from the date of receipt/production of a copy of this order.
16. The writ petition is allowed with the aforesaid observations and directions.
However, there shall be no order, as to costs.
***
262
W.P.(Civil) NO.942 & 946 of 2003 D.D. 2.5.2003
The Hon'ble Mr. Justice S.J.Mukhopadhaya
Ram Badan Singh - Petitioner Versus The State of Jharkhand & Others – Respondents The petitioner has challenged the cut off date of 1.8.2002 to count the minimum age of eligibility of 22 years for appointment to the post of Assistant Engineer in Public Health Engineering Department. The High Court following the earlier decision has rejected both the writ petitions holding that the power to relax the age for appointment or the power to fix a maximum age for appointment or the power to fix a cut off date for appointment is vested with the Appointing Authority and the High Court has no jurisdiction - Hence both the writ petitions are dismissed.
ORDER
In both the cases, as petitioner is common and common question of law
involved, they were heard together and are being disposed of by this common order.
2. In WP(C) No. 942 of 2003, the petitioner has challenged the cut off date of 1st
August, 2002 as fixed to count the minimum age of eligibility of 22 years for
appointment to the post of Assistant Engineer in Public Health Engineering
Department (PHED for short) and notified vide Advertisement No. 12/02-03 with
further prayer to direct the respondents to decrease the minimum age limit, as
mentioned in Clause-IV of the advertisement aforesaid and to accept the application of
the petitioner for consideration of his case for appointment against the post of
Assistant Engineer along with others.
In the other case, W.P.(C) No. 946 of 2003, similar prayer has been made by
the petitioner against the minimum age of 22 years as on 1st August, 2002 prescribed
for appointment in different State Civil Services, vide Advertisement No. 11/02-03
published by Jharkhand Public Service Commission (J.P.S.C. for short).
3. The case of the petitioner is that, he passed the matriculation examination in
1995 with Division, completed Intermediate (Science) and thereafter look admission
in BIT Sindri in the year 1998. He completed Engineering course and provided with
provisional certificate from BIT Sindri in the year 2002 and is otherwise eligible for
appointment to the post of Assistant Engineer and the State Civil Services.
The date of birth of petitioner being 9th October, 1980 he attained 22 years of
age on 9th October 2002. His grievance is that in view of clause IV of Advertisement
263
No.12/02-03 for appointment to the post of Assistant Engineer in PHED he has been
made ineligible and thus debarred from consideration of his case for appointment to
the post of Assistant Engineer though he is otherwise eligible on the date of
advertisement.
Similar plea has been taken in respect to the Advertisement No. 11/02-03
published by the JPSC in the newspaper "HINDUSTAN TIMES" on 2nd January,
2003 for appointment on different posts of Jharkhand Civil Services and Labour and
Employment Services.
4. According to the petitioner, there is absolutely no legal reasoning or valid basis
for fixing the minimum age limit of 22 years on a particular day of the previous year,
rather when the advertisement itself is being published in the year 2003, the JPSC
should have either fixed the minimum age requirement as 21 years as being done in all
other competitive examinations should have fixed such minimum age requirement as
on the last date of submission of application.
According to petitioner, in most of the cases/advertisements, almost all the
concerned organizations have fixed the minimum age requirement of 21 years for
appointment in Government services.
5. Mr. Mihir Kumar Jha, the counsel for the petitioner relied o Annexre-5 series,
the advertisements published by the Union Public Service Commission on 18th
January 2003, Public Service Commission, Uttar Pradesh in 2003, two advertisements
published by the Union Public Service Commission in 2003 Advertisement published
by the Electricity Service Commission Lucknow in 2003, Public Service Commission,
Uttaranchal on 19th August, 2002 etc to suggest that all the Selection Bodies/Public
Service Commissions have fixed the minimum age of 21 years.
6. Learned Advocate General, Jharkhand appearing for the JPSC submitted that
the posts in Civil Services used to be filled up as per Bihar Civil Services (Executive
Branch) & Bihar Junior Civil Services (Appointment) Rules 1951. The said rule has
been adopted by the State of Jharkhand with certain amendments under section 85 of
the Bihar Re-organization Act, 2000, vide Notification No. 2/NI-005/2002 KA-6184
dated 9th November 2002.
264
The minimum age has been fixed as per Rule 6 of 1951 Rules and the
maximum age has been fixed as per the amendments made vide Notification No. 6184
dated 9th November, 2002.
7. So far as appointment to the post of Assistant Engineer, PHED is concerned,
the learned Advocate General relied on Rule 4(a) of the "Rules regulating the method
of Recruitment to the Bihar Public Engineering Services Class-II".
8. Under Rule 6 of the Bihar Civil Services (Executive Brach) and Bihar Junior
Civil Services (Appointment) Rules 1951, as adopted by the State Jharkhand, vide
Notification No. 6184 dated 9th November 2002. The minimum age for appointment
in the Civil Services has been prescribed.
The relevant part of the original Rule 6 is quoted here under:
"6 A candidate may either be a male or female, and:-
(b) be under 25 years and over 22 years of age on the 1st day of August last preceding the month in which the examination is held:
Provided that –
(i) in the case of candidate belonging to the scheduled castes or the scheduled tribes, the upper age limit shall be under 30 years."
The maximum age limit, as was prescribed has been enhanced by the State
Government.
9. Mr. Mihir Kumar Jha, the counsel for the petitioner submitted that the month
in which the examination is to be held having not yet fixed, the Respondents should
not have fixed the cut-off age of 22 years as o 1st of August 2002. According to him if
the examination is held after August 2003 then as per Rule 6(a) the candidates having
minimum age of 22 years as on 1st August 2003 will also become eligible.
However, the aforesaid submission cannot be accepted in view of recent
advertisement published by JPSC on 1st April, 2003 in the newspaper
"HINDUSTAN", Rachi, wherein 6th July, 2003 is the date of preliminary examination
has been fixed.
10. The minimum and maximum age limit of 22 years and 35 years respectively as
has been fixed for appointment in the Jharkhand Civil Services vide Advertisement
No. 11/02-03, fell for consideration before this Court in the case of "Md. Shamini
265
Anjum Vs. State of Jharkhand and others" (W.P (S) No. 289 of 2003) analogous with
the case of "Md. Tahri Vs. State of Jharkhand and others" (W.P. (C) No. 322 of
2003). In those cases, both the petitioners had challenged the cut off date fixed to
calculate the maximum age limit and prayed for direction on the State to relax the
upper age limit. A Bench of this Court, vide is (Unreported) decision dated 22nd
January 2003 while rejected the prayer as was made in both he writ petitions, hold that
the power to relax the age for appointment or the power to fix a maximum age for
appointment or the power to fix a cut off date for appointment is vested with the
appointing authority/the State of Jharkhand and the High Court has no such
jurisdiction. Both the writ petitions were dismissed there being no merit.
11. In view of Rule 6(a) of the Rules 1951, as adopted by the State of Jharkhand
and the date of preliminary examination having fixed by the JPSC on 6th July, 2003, I
find that the Respondents have rightly fixed the cut off date of 1st of August 2002
years and it requires no interference. The prayer made in WP(C) No. 942 of 2003 is
thus rejected.
12. I or appointment to the post of Assistant Engineer in PHED the minimum age
has been fixed under Rule 4(a) of the Bihar Public Health Engineering Services Class-
II Rules, as quoted hereunder.
"4 A candidate must
(a) be of an age not below twenty-three years and not exceeding twenty-five years on the first day of August in the year in which applications are invited provided that if he satisfies the Commission that he requires no further practical training in Engineering he may be of a age not exceeding twenty-six years on that date; provided Government may inn special cases relax the age-limit; provided that in the case of candidates belonging to the scheduled castes and backward tribes, the upper age-limit shall be under 28 years".
13. Mr. Mihir Kumar Jha, the counsel for the petitioner having not adopted by the
State of Jharkhand under Rule 85 of the Bihar Reorganization Act, 2000 within two
years of reorganization of the State i.e., by 15th November 2002, the said rule cannot
be made applicable for appointment to the post of Assistant Engineer in PHED
Jharkhand.
Mr. Jha further submitted that the aforesaid Bihar Public Health Engineering
Services Class-II Rules is not a statutory rule nor any enactment, ordinance,
regulation, order bye-law, scheme notification to fall within the ambit of 'law' as per
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section 2(i) of the Bihar Reorganization Act, 2000. Therefore, the question of it
continuance or adoption under sections 84 and 85 of the Bihar Reorganization Act,
2000 does not arise.
14. For determination of aforesaid issue, it will be appropriate to refer the relevant
provisions of the Bihar Reorganization Act. In the said Act, 'law' has been defined
under section 2(f) which reads as follows:-
"2(f) "law" includes any enactment, ordinance, resolution, order, bye-law, rule, scheme notification or other instruments having immediately before the appointed day, the force of law in the whole or in any part of the existing State of Bihar".
'Territorial extent of laws' while provided under section 84 but the power to
adopt laws has been provided under section 85 as quoted here under:
"84. Territorial extent of laws – The provisions of Part II of this Act shall not be deemed to have effected ay change in the territories to which any law in force immediately before the appointed day extends or applies, the territorial references in any such law to the State of Bihar shall, until otherwise provided by a competent Legislature or other competent authority be construed as meaning the territories within the existing State of Bihar before the appointed day. 85. Power to adapt laws. For the purpose of facilitating the application in relation to the State of Bihar or Jharkhand of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, by order, make such adoptions and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adoptions and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority.
Explanation – In this section, the expression "appropriate Government" means as respects any law relating to matter enumerated in the Union list, the Central Government, and as respects any other law in its application to a State, the State Government.
15. From section 84, it is clear that all the laws enforce immediately before the
appointed day i.e. 15th November 2000 in the erstwhile State of Bihar remain effective
continue and are applicable in both the successor State of Bihar and Jharkhad, until
otherwise provided by a competent Legislature or the competent authority, irrespective
of reorganization of State.
16. After reorganization of the State of Punjab, similar issues fell for consideration
before the Supreme Court in the case of Rattan Lal Co. Vs. the Assessing Authority,
Patiala reported in AIR 1970 SC 1742, wherein the Supreme Court held.
267
"...................... The Scheme of the State read as Re-organization Act makes the law applicable to the new areas until superseded, amended or altered by the appropriate Legislature in the new State. This is what the Legislature had done and there is nothing that can be said against such amendment."
Even the Administrative Orders made by the Government of the erstwhile
State continue to be in force and effective and binding on the successor States until
and unless they are modified, changed or repudiated by the Governments of the
successor State, was the finding of the Supreme Court in the case of State of Punjab
Vs. Balbir Singh, AIR 1977 SC 629 as quoted hereunder:
".................... In our judgment when there is no change of sovereignty and it is merely an adjustment of territories by the reorganization of a particular State, the administrative orders made by the Government of the erstwhile State continues to be in force and effective and binding on the successor State until and unless they are modified, changed or repudiated by the Governments of the successor States. No other view is possible to be taken. The other view will merely bring about chaos in the administration of the new States. We find no principle in support of the stand that administrative orders made by the Government of the erstwhile State automatically lapsed and were rendered ineffective on the coming into existence of the new successor States".
17. The aforesaid provision of section 2(f) and section 84 of the Bihar Re-
organization Act, 2000 fell for consideration before a learned Single Judge of Patna
High Court in the case of Singhbhum Homoeo Med. College and Hospital Vs. State of
Bihar, reported i 2002(2) PLJR 80 wherein the Court held as follows:-
"3. from a conjoint of the above it is clear, that all 'laws' in force immediately before the appointed day i.e. the day the division of State became effective, continue to be applicable notwithstanding the change in the territories, and a 'notification' being 'law', as such remains valid and binding so far as the territories comprising the new state are concerned".
18. Similar was the view of the Division Bench of Patna High Court in the case of
Commissioner Vs. M/S. Swarnarekha Cokes & Coal Pvt. Ltd., reported in 2002(2)
PLJR 334, wherein while it considered the relevant provisions of sections of sections
84 and 85 along with section 2(f) of the Bihar Re-organization Act, 2000 held as
follows:-
"9. It is significant to mention that what had fallen for consideration before the Supreme Court was an administrative order not amounting to law within the meaning of section 2(g) of the Punjab Act- as held by the Punjab High Court with which the Supreme Court agreed. It was on general principles that extended meaning was given to the administrative orders and they were held to be applicable in the successor State. The present case stands on a much higher footing
268
inasmuch as the basis of the claim of the respondents is a statutory order/notification which amounts to law by virtue of the inclusive definition of the term 'law' in section 2(f) of the Bihar Act.
10. The above categorical an definite enunciation of law by the Apex Court leaves no room for doubt about applicability and binding nature by the statutory orders/notification of the Government of the erstwhile State of Bihar in the successor State of Jharkhand. In fact, there is no necessity of its being 'adopted' as observed by the learned judge. Under section 84-unless repudiated or otherwise modified or superseded by a legislative mandates, they continue to be applicable and binding in the successor State."
19. This court in its recent (Unreported) decision dated 7th April, 2003 in the case
of "Rajiv Kumar Vs. the State of Jharkhand and others", WP(C) No. 5341 of 2002 also
held that the laws of the combined State of Bihar continue in the successor State of
Bihar and Jharkhand under section 84 of the Bihar Re-organization Legislature of
competent authority of the successor state.
20. In view of the aforesaid finding, I have no hesitation to hold that the "Bihar
Public Health Engineering Services Class-II Rules", whether it is a statutory rule or
instruction or executive instruction or order, it is still in force and binding on both the
successor States of Bihar and Jharkhand until and unless suitable provision is made by
the competent Legislature or the competent authority of the State of Jharkhand.
21. The count has noticed the provision of Rule 4(a) of the Bihar Public Health
Engineering Services Class-II Rules wherein the minimum age of 23 years is
prescribed on the 1st day of August in the year in which applications are invited.
Learned Advocate Central while accepted that 22 years is the minimum age prescribed
in the Advertisement No. 12/02-03 as on 1st August-2002 rightly clarified that it will
not affect any of the candidate in any manner, the advertisement having published in
the year 2002 and as all the eligible candidates will attain the age of 23 years on 1st of
August 2003, as per the advertisement.
22. In the aforesaid background the petitioner being not eligible as per clause 4(a)
of the Bihar Public Health Engineering Services Class-II Rules or the advertisement,
no relief can be granted in his favour.
23. There being no merit, both the writ petitions are dismissed. However, there
shall be no order as to costs.
***
269
W.P.(S) NO.2600 of 2003 D.D. 12.6.2003
The Hon'ble Mr. Justice S.J.Mukhopadhaya
Raj Kishore Prasad & Others – Petitioners Vs. The State of Jharkhand & Others - Respondents
Held – As the examination was held on 27.5.2003 and re-examination at certain centers was also completed on 12.6.2003, re-examination cannot be held to enable the petitioners to take the examination.
ORDER
From the pleading made by the petitioners, it will be evident that the
Respondents issued Admit Cards in their favour for appearance in Primary Trained
Teachers Appointments Examination 2002 held on 27th May, 2003.
There is nothing on the record to suggest that the some unscrupulous elements
snatched the Admit Cards. There is also no documents, on the record, to suggest that
the petitioners have lodged any FIR.
The counsel for the JPSC informed that the examination was completed on 27th
May, 2003 and re-examination of certain Centers has also been completed peacefully
today (12.06.2003).
In the circumstances, the petitioners having missed the Bus, no relief can be
granted.
The writ petition is dismissed.
***
270
C.M.P. NO.254 of 2003 D.D. 24.6.2003
The Hon'ble Mr. Justice S.J.Mukhopadhaya
Jharkhand Public Service Commission & Anr. Versus The State of Jharkhand & Others Jharkhand Public Service Commission could not hold Preliminary Examination for appointment in State Civil Services fixed on 6.7.2003 as per the notification on account of law and order problem. By this application the Commission sought for extension of time to hold the preliminary examination – The Commission was allowed to extend the date of Preliminary Examination and to hold the examination within two months.
ORDER
This petition has been preferred by Jharkhand Public Service Commission (for
short JPSC) to allow it to extent the time to hold preliminary examination for
appropriate in State Civil Services.
A writ petition W.P.(C) 946/2003 was dismissed by this Court on 2nd May
2003, taking into consideration the facts, relevant law and the advertisement published
by JPSC whereby the date of preliminary examination was fixed by the JPSC. In this
petition, JPSC has brought to the notice of the Court that it faced violence on 27th
May, 2003 i.e. the date on which JPSC conducted the Trained Teachers Examination.
Since thereafter, JPSC has taken precaution to hold further examination in prospective
centers. For maintenance of law and order JPSC has taken up the matter with the State
Govt. In view of recent violation and law & order problem JPSC may not be in a
position to hold the Preliminary Examination on 6th July, 2003 for appointment in the
State Civil Services as per the advertisement. Prayer has been made to allow the JPSC
to extend the date of Examination.
The counsel for the writ petitioner opposed the prayer. According to him the
writ petition was dismissed on one of the ground that the date of examination has been
fixed, as per which the minimum age was properly fixed. It was submitted that if the
JPSC extends the date of examination, the respondents should lower down the
minimum age, accordingly.
However, such submission as made on behalf of writ petitioner cannot be
accepted, as the minimum age already fixed for appointment cannot be changed from
time to time with the change of the date of examination, which is dependent on
various factors, including the law and order of the State.
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In view of the reasons shown by JPSC it is allowed to extend the date of
Preliminary Examination for appointment in the State Civil Services. The JPSC is
expected to hold the examination on an early date, preferably within two months.
This Miscellaneous petition stands disposed of with aforesaid observation.
***
272
W.P.(S) NO.2885 of 2003 D.D. 25.6.2003
The Hon'ble Mr. Justice S.J.Mukhopadhaya
Mrs. Karuna Bala – Petitioner Versus The State of Jharkhand & Anr. – Respondents Petitioner whose application for recruitment to Primary Trained Teachers has been rejected being overage has filed this petition for permission to appear for the examination. Held – As the examination has been already held writ petition is dismissed.
ORDER
In this case, the petitioner has prayed for direction on respondents to issue him
admit card and to allow him to take part in Primary Trained Teachers Appointment
Examination, 2002 pursuant to advertisement published on 20th August, 2002.
According to petitioner, the action of respondents declaring him overage is
illegal.
The Counsel for the JPSC submitted that in pursuance of the order of a
Division Bench of this Court in WP(C) Nos. 5170/02 and 6135/02, maximum age
limit of 40 years for General Category and 42-43-45 years was prescribed for reserved
categories. The petitioner being overage as per Courts order and subsequent
advertisement dated 22nd September, 2002 published in the Newspaper 'Hindustan',
was not allowed to appear in the examination.
It has been bought to the notice of the Court that the examination has already
been held on 27th May, 2003 and in some of the centers where examination was
cancelled, re-examination has also been conducted on 12th June, 2003.
In the aforesaid background the examination having completed by respondents,
the petitioner having missed the bus no, relief can be granted at this subsequent stage.
The prayer as made in this case is rejected.
The writ petition is dismissed, with the aforesaid observations.
***
273
KARNATAKA PUBLIC SERVICE COMMISSION
274
SUPREME COURT OF INDIA AIR 1990 SC 405
P.Mahendra Vs. State of Karnataka Appointment of Motor Vehicle Inspector – Commencement of process of selection prospective amendment of Rules meanwhile – Selection process has to be completed in accordance with the law as it stood at its commencement - Amended rule would not invalidate selection already made. It is well settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect the existing rights the Rule must be held to be prospective.
AIR 1990 SC 1233
N.T.Bevinkatti Vs. KPSC A candidate on making application for a post pursuant to an advertisement does not acquire any vested right for selection, but if he is eligible and is otherwise qualified in accordance with the relevant Rules and the terms contained in the advertisement he does acquire a vested right for being considered for selection in accordance with the Rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of Rules during the pendency of selection unless amended Rules are retrospective in nature.
AIR 1992 SC 952
Karnataka Public Service Commission Vs. B.M.Vijayashankar Civil Services Examination – Conduct and Regulation – Instruction not to write role number on answer book at any place except in the space provided on first page – Commission not subjecting such answer books for evaluation for breach of such instruction - Action not arbitrary – opportunity of hearing to candidates need not be given.
(1996) 11 Supreme Court Cases 563 Prakash K vs. State of Karnataka
Service Law – Delay and laches – Appointment of teachers in excess of 50% quota reserved for backward classes and weaker sections – Select list prepared in November 1993 i.e. subsequent to announcement of judgment in Indra Sawhney's case – Appointment challenged in June 1995 on the ground that reservation in excess of 50% quota was unconstitutional – Tribunal declining to interfere with the appointment on ground of laches as by the time the challenge was made, all the appointments had already been made and incumbents were working – Supreme Court confirmed the order of the Tribunal holding no interference was called for by the Supreme Court.
MYSORE/KARNATAKA HIGH COURT
1965 (2) Mysore Law Journal 404 Narayana Singh Vs. State of Mysore
Held – Delegation by the Governor of the power to prescribe the particulars relating to the method of recruitment including details of test and interview was permissible under Art. 309 of the Constitution and was valid.
275
Where the petitioner sat for written examination and also attended the interview, he must be held to have acquiesced in the actions taken by the Public Service Commission and if he failed to secure selection, he cannot be permitted to challenge the selection and the notification. In the absence of allegations of facts furnishing the basis for the contention, a petitioner cannot be allowed to raise the plea of infringement of equality under Art. 16 of the Constitution. Gopivallabha Iyengar, J. made the following:
ORDER
Under the Rules called the Mysore General Service (Development Branch)
Recruitment Rules, 1959 framed on 14.7.1959 by the Governor of Mysore under the
proviso to Art. 309 of the Constitution of India, the Governor provided for recruitment
to the posts of Block Development Officers. The Rules pertaining to the said posts are
marked as Ex.A. These Rules were amended on 16.11.1960 providing for the
recruitment of Deputy Block Development Officers also. The method provided is
direct recruitment by selection on the basis of a test and an interview prescribed by the
Public Service Commission. Pursuant to this provision, the Public Service
Commission issued a Notification dated 24th March 1961 (a true copy of which is
marked Ex.B) setting out the Rules for the selection of persons to the posts of Block
Development Officers and Deputy Block Development Officers. (The approximate
number of vacancies in the cadre of Block Development Officers was 17 and the
number in the cadre of Deputy Block Development Officers was 50). In the said
Notification, the Public Service Commission stated qualifications for admission to the
examinations, the syllabus and the rules relating to the examination. Candidates were
required to submit their applications on or before the 1st May 1961. In response to the
said Notification, the petitioner made an application for admission to the examination.
The written test was held on 30.7.1961 and the interview was held on 15.10.1961. As
the result of the test and the interview held by the Public Service Commission, 17
persons were selected for the posts of Block Development Officers and 63 for the
posts of Deputy Block Development Officers. The list of selected candidates was
published on 30th Nov. 1961. Respondents 3 to 19 were selected as candidates for the
posts of Block Development Officers and Respts. 20 to 82 were selected for the posts
of Deputy Block Development Officers. A copy of the said list is marked as Ex.C.
The petitioner, not being one of the candidates selected by the Public Service
Commission, feels aggrieved and by this application he prays for the issue of, (i) a writ
of certiorari or any other appropriate writ or order quashing the selections made by the
276
Public Service Commission under Ex.C and also (ii) for the issue of a writ of quo
warranto to declare that respondents 3 to 10 have no authority to hold the office of the
Block Development Officers and similarly respondents 20 to 82 have no authority to
hold the office of Deputy Block Development Officers in the Development
Department of the first respondent. The State of Mysore is impleaded as the first
respondent and the Public Service Commission as the second respondent.
Several contentions have been raised by Sri G.S.Ullal, the learned Advocate
appearing for the petitioner. His first contention is that the Governor ought to have
prescribed all the particulars relating to the method of recruitment, including the
details of the test and interview (referred to in Ex.A). He submits that by providing in
Ex.A that the recruitment shall be by selection on the basis of a test and an interview
prescribed by the Public Service Commission, the Governor has abdicated his powers
under Art. 309 of the Constitution of India. In support of this contention Sri. Ullal
places reliance on the decision of this Court in Chandrasekhara v. State of Mysore (1).
The question concerned in the aforesaid decision was the appointment of Munsiffs, a
matter governed by the provisions of Art. 234 of the Constitution. It was held that Art.
234 of the Constitution, on its true construction makes it a special duty and
responsibility of the Governor to himself make a rule about the qualifying marks and
that power cannot be delegated to any other authority. The said decision was with
reference to the language of the said Article. Art. 234 of the Constitution reads as
follows:
"Appointments of persons other than District Judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State."
It will be noticed that the above article does not provide for the delegation by the
Governor of his constitutional responsibility of making the Rules, to any one else. But
such is not the case in Art. 309 of the Constitution which reads as follows:
"Subject to the provisions of this Constitution, Acts, of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed to Public Services and posts in connection with the affairs of the Union or of any State.
Provided that it shall be competent for the President or such
person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a Stat or such person as he may direct in the case of services and posts in connection with the affairs of the State to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate
277
Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act."
It will be noticed that under the proviso to Art. 309, it is specifically provided that the
Governor of a State or such person as he may direct, may make rules regulating the
recruitment and the conditions of service of persons appointed. Therefore, the
aforesaid decision of this Court relied on by the Petitioner's Counsel, cannot be of any
help to him in view of the specific provision under the proviso to Art. 309 permitting
the Governor to delegate his power to make rules to such person as he may direct.
When he has been endowed with such plenary competence to delegate his power in
the matter of making the Rules, there can be no valid objection if the Governor has
directed the Public Service Commission to prescribe the test and interview referred to
in Ex.A. Therefore this contention of the petitioner fails.
The second contention is that the scheme prescribed by the Public Service
Commission (Ex.B) does not contain the particulars necessary for a test and is
arbitrary. It is pointed out that no difference is made in the mode of selection of the
Block Development Officers and the Deputy Block Development Officers. It is
further pointed out that the Public Service Commission has not prescribed the
minimum marks required to pass the examination though the Note in para 5 of the
Notification Ex.B specifically makes a reference to the candidates passing the written
examination and therefore it was obligatory on the part of the Public Service
Commission to prescribe the minimum marks for the written examination. Para 5 and
the Notification referred to by Sri Ullal are as follows:
"The written examination and the viva voce will be conducted by the Mysore Public Service Commission and shall consist of:
Subject Maximum Marks (a) A written paper 100 General Knowledge Note:- General Knowledge includes knowledge of current events
and of such matters of every day observation and experience in their Scientific aspects which an educated person shall be able to answer without special study. The paper will also include questions on Indian History and Geography, the Constitution of India, the Five Year Plans and the Community Development and General Principles of Public Administration.
(b) A Viva-Voce 100 Note:- Such of the candidates as are declared by the Commission
to have passed the written examination will be admitted to the viva voce. The object of the viva voce will be to assess the suitability of the
candidates for appointment as Block Development Officers and their caliber including intellectual, social and moral traits of personality, such
278
as critical powers of assimilation, clear and logical exposition, judgment, variety and depth of interests and capacity for leadership."
The failure to prescribe the minimum marks, it is submitted, is a defect which renders
the entire selection invalid. In answer to this contention, the Government Pleader does
not deny that the Public Service Commission has not adhered to that portion of the
Note aforementioned. But, it is submitted by him that an adherence to the Note by
prescribing minimum marks for passing the written examination and excluding such
candidates as had not passed therein from the viva voce, would have been against the
method of recruitment prescribed by the Governor in Ex.A. It is contended that when
Ex.A requires that the selection should be on the basis of a test and an interview, the
performance in the test and the interview must be taken together to judge the
suitability of the candidate and therefore it was incumbent on the part of the Public
Service Commission to allow every candidate to participate in the test as well as the
interview; no candidate could have been excluded from the interview on the ground of
poor performance in the written test. The Government Pleader contends that it is for
this reason that the Public Service Commission rightly ignored that portion of the Note
to Rule 5 referred to above. There is much force in this contention. Such adherence to
the Note would have been contrary to the method of recruitment prescribed in Ex.A.
The Public Service Commission has acted correctly in not excluding any candidate
from the interview. The prescription of the minimum marks for the written test for the
purpose of excluding candidates from the interview, would have been contrary to the
method of recruitment provided under Ex.A. What has been done, being in
accordance with Ex.A, there is no force in the contention of the petitioner that the
failure to prescribe the minimum marks for the test, renders the selection invalid.
Further, the admission of all the candidates, to the interview, has been caused any
prejudice to the petitioner, in view of the fact that none of the selected candidates has
obtained less marks than he petitioner in the written test. It may be salutary to
prescribe minimum marks to be secured in the examination, as it would enable the
elimination of candidates who re wholly unfit and would thereby be conducive to the
selection of efficient candidates; but we cannot agree that unless minimum marks are
prescribed, there cannot at all be a proper selection of suitable candidates.
Another contention of the petitioner's Counsel is that the test and the interview
prescribed in Ex.A are the same as a competitive examination governed by R.3 of the
Mys. Public Service Commission (Functions) Rules, 1957. But, the argument of the
Government Pleader is that the test and interview conducted by the Public Service
Commission under the scheme embodied in Ex.B, is only for the purpose of selection
of suitable candidates for being appointed to the posts concerned and it is submitted
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that the Public Service Commission has proceeded, in this case, under Rule 4 of the
Mysore Public Service Commission (Functions) Rules, 1957. (It may be stated that in
view of the decision in Govindarajulu v. State of Mysore (2), the Mysore Public
Service Commission (Functions) Rules, 1957, to the extent they deal with the topic of
regulating recruitment to Civil Services under the State, must be regarded as having
been made in the exercise of the power under the proviso to Art. 309 of the
Constitution). The method of recruitment in respect of these posts, as provided in
Ex.A, is not competitive examination; but selection on the basis of a written test and
interview. It would be Rule 4 that would be applicable and not Rule 3 which relates to
competitive examinations. Therefore, reading Rule 4 as supplementing what is
provided for in Ex.A as to the method of recruitment, the Public Service Commission
has, in accordance with it, considered all applications received in response to Ex.B,
held that test and the interview and as a result of such test and interview has forwarded
the list of candidates whom the Commission has considered most suitable for
appointment, that list being arranged in the order of preference according to heir
performance in the test and interview.
In paragraph 19 of the affidavit filed on behalf of the State, it is mentioned that
candidates not possessing the required qualification have been selected. The minimum
qualification for the purpose of recruitment is set out in Col.3 of Ex.A. It is only
those candidates that possessed the said minimum qualification that were admitted to
the test and interview prescribed by the Public Service Commission and have been
ranked on the basis of the marks obtained by them in the test and interview. In these
circumstances, there is no basis for the allegation that the selection for the posts of
Block Development Officers and Deputy Block Development Officers is arbitrary or
otherwise invalid.
In para 22 of the petitioner's affidavit with the amendment made subsequently,
it is set out that Respondents 9, 25, 30, 31, 45, 49, 53, 56, 57, 59, 60, 67, 68, 71, 72
and 74 are not qualified for being appointed as either Block Development Officers or
Deputy Block Development Officers, as they do not possess the requisite
qualifications for appointment to the said posts. No details are set out in support of the
said allegation. This allegation is countered by the State by stating in para 19 of its
affidavit that candidates not possessing the required qualification have not been
selected. But, in the affidavit filed by the petitioner in support of I.A. No. IV on
24.2.1965 seeking permission of the Court to file an affidavit in reply to the counter
filed by respondents 1 and 2, a few additional grounds are stated. The Government
Pleader objects to the petitioner being permitted to file the reply affidavit as the
280
application has been made at a late stage and the Respondents had no opportunity to
counter the fresh allegation made therein. We do not propose to take into
consideration such allegations made in the reply affidavit as have not already been
mentioned in the affidavit filed in support of the writ petition. We, now refer to the
allegations made in respect of respondents 45, 56 and 57 in the affidavit filed by the
petitioner in support of the writ petition. The allegations are of a very vague nature to
the effect that they and several other respondents do not possess the required
qualification for appointment to the posts in question. Respondent 45 has filed a
counter affidavit and in para 17 of the said affidavit he denies the allegations made
against him by the petitioner. It is stated that this respondent was appointed as an
Extension Officer on 5.1.1958 and has put in a service of 3 years, 3 months and 25
days as an Extension Officer. Similarly in para 7 of the counter affidavit filed by the
56th respondent it is stated that on 1.5.1961 he had served for a period of 3 years and
10 months as Extension Officer and he has the requisite qualification. The 57th
respondent has also sworn that he has served as an Extension Officer for 3 years and 3
months by 1.5.1961 and he has the requisite qualification.
In paragraph 9 of the affidavit filed in support of the application I.A.No.IV, it
is alleged that respondent 52 is a non-graduate, not an Extension Officer who has put
in 5 years of service as such but has put in only 3 years of service and therefore her
application ought not to have been entertained. We have seen the application form
submitted by her. From the details mentioned therein it appears that she has served as
n Extension Officer for Social Education – Mukhya Sevaka – for 3 years, 9 months
and 5 days. The application submitted by these candidates bear a certificate by the
Head of the Department through whom the applications have been submitted, that the
entries made in the application have been verified with reference to the relevant
records kept in his office and that they are found to be correct. The petitioner has
overlooked the Note in Col.3 of Ex.A corresponding to the Block Development
Officers posts which is as follows:
"Note:- In the case of candidates who have worked as Extension Officers the minimum service qualification shall be three years."
In view of this Note and the details mentioned in the applications, the allegations made
as against Respondents 45, 52, 56 and 57 are baseless. No material is placed before
the Court to substantiate the allegations made against the other Respondents.
With regard to Respondent 79, it is stated on behalf of the State that he belongs
to the Scheduled Castes and he was selected for one of the reserved posts. Therefore
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his case stands on a footing different from that of the Petitioner and the petitioner
cannot have any grievance against him or his appointment.
The learned Government Pleader brings to our notice several circumstances to
support his contention that the petitioner is not entitled to any relief in this Petition.
He submits that the selection made by the Public Service Commission was notified on
30th of November 1961 and this petition is filed by the petitioner challenging the said
selection on 31.7.1962 and therefore the petition is highly belated.
The learned Government Pleader also submits that the Notification of the
Public Service Commission Ex.B is issued on the 24th March 1961 and is published in
the Gazette dated 30th March 1961. The petitioner sat for written examination held on
30.7.1961 and also attended the interview on 15.10.1961. Therefore it is contended
that the petitioner has acquiesced in the action taken by the second respondent in
pursuance of the Notification Ex.B and took a chance of being selected for the post of
Block Development Officer or Deputy Block Development Officer; having failed to
secure selection in accordance with the said Notification, the petitioner is now
attempting to attack the entire selection and he cannot now be permitted to challenge
the said Notification. We find that there is much force in both these contentions.
The Government Pleader further submits that the petitioner has not been
prejudiced in any manner whatever. The petitioner has secured 37½ marks in the
written examination and 37 marks in the interview, the total marks obtained by him
being 74½. No person who has secured less than 99 marks has been included in the
list of selected candidates. Therefore, the petitioner had no chance of being selected
for the post concerned. The petitioner's learned Counsel required a scrutiny of the
cases of respondents 3, 30, 45 and 55. We have looked into the relevant records to
satisfy ourselves, if there is any basis for the allegations made by the petitioner. We
have seen the answer books of all the said candidates and also the register containing
the entries of the marks obtained by all these candidates. We are satisfied that there is
no substance in the allegation made that respondents 3, 30, 45 and 55 were given any
special treatment as alleged by the petitioner in para 13 of his reply affidavit.
In para 21 of the petitioner's affidavit he states that the Public Service
Commission has made the selection in direct violation of equality of opportunity
guaranteed under Art. 16 of the Constitution. No facts are stated furnishing the basis
for this contention. The petitioner has not mentioned as to how the failure to fix the
minimum has resulted in violation of equality of opportunity guaranteed under Art. 16.
282
Relying on observations of the Supreme Court in V.S.R. & Mills v. State of A.P. (3)
with reference to Art. 14 of the Constitution which apply with equal force to Art. 16
also and which are as follows:
"When a citizen wants to challenge the validity of any statute on the ground that it contravenes Art. 14, specific, clear and unambiguous allegations must be made in that behalf and it must be shown that the impugned statute is based on discrimination and that such discrimination is not referable to any classification which is rational and which has nexus with the object intended to be achieved by the said statute."
The Government Pleader contends that in the absence of specific averments, the
petitioner should not be permitted to raise the aforesaid contention. We agree with
this contention of the learned Government Pleader.
The Government Pleader also advanced an argument that the petitioner is not
entitled to any relief by way of issue of a Writ of Quo-warranto as that relief is not
available in law in respect of a post such as that of the Block Development Officer or
that of the Deputy Block Development Officer. He bases his contention on several
grounds viz., (a) that the post is temporary and that in respect of temporary posts Writ
of Quo-warranto is not to be issued; (b) that the Office of the Block Development
Officer or that of the Deputy Block Development Officer not being a statutory post, a
Writ of Quo-warranto cannot be issued. It is unnecessary for us to consider these
contentions, in view of the fact that we have come to the conclusion that the selection
made as per Ex.C is valid and the petitioner is not entitled to a Writ of Certiorari
quashing the impugned list of the selected candidates for the posts of Block
Development Officers and Deputy Block Development Officers.
In view of the foregoing conclusions, his petition fails and is dismissed with
costs.
***
283
1975 (1) Karnataka Law Journal 459 T.V.Sathyaprakash Vs. KPSC
Computation of marks in the qualifying examination – Where the qualifying examination prescribed for the post was First or Second Class Master's Degree and the qualifying examination consisted of two University examinations, under Rule 5(3)(b) of the Rules the Karnataka Public Service Commission ought to have taken the average of the percentage of total marks secured in those two examinations for preparing the eligibility list for interview.
Sri. Jagannatha Shetty, J. made the following order:
ORDER
This petition under Art. 226, is concerned with the scope of Rule 5 of the
Karnataka State Civil Services (Direct Recruitment by Selection) Rules, 1973
(hereinafter called 'the Rules').
The petitioner, Satyaprakash, has obtained a rule from this Court calling upon
the State Public Service Commission (called shortly as 'the Commission') to show
cause why a writ under Art. 226 should not be granted commanding the Commission
to interview the petitioner for the post of Lecturers in Economics.
The Commission published a notification dated 17th May, 1973 inviting
applications from qualified candidates for the posts of Lecturers in the Dept. of
Collegiate Education. The qualification prescribed therein was, one must be holder of
a degree not lower than a second class masters degree of a University established by
law. The petitioner was one of the applicants to the post of a Lecturer in Economics.
He has passed M.A. degree examination. But he was barred at the threshold as he was
not called for interview. It is said that he could not find a place in the eligibility list by
the Commission by the Commission under Rule 5 of the Rules.
It is averred in the statement of objections filed on behalf of the Commission
that the eligibility list was prepared on the basis of the percentage of total marks
obtained in the final M.A. degree examination and not on the basis of the percentage
of aggregate marks obtained in the M.A. degree course as a whole. The list was said
to have been prepared as per the resolution dated 21st Jan 1974, passed by the
Commission. The resolution reads:
"In respect of recruitment to any post/s for which a degree of a recognized University is prescribed and candidates possessing Bachelor's degree/master's degree apply for such posts, the percentage of marks thus obtained in the final years Bachelor's degree of Master's degree, whichever is advantageous to the candidates should be considered for calculating the percentage of marks.
284
In the final year Master's degree marks card of the Bangalore, Mysore and Karnataka Universities, marks of the previous examinations are also included. According to the earlier decision of the Commission, only the marks of the final year degree are to be taken into consideration. Hence the marks obtained by the candidates in the previous examinations which are included in the final year degree marks card, should be deleted and the marks calculated. The marks obtained by candidates under Part II in the degree examination indicated in the final degree marks statement of the Karnataka University should be deleted and the rest including the marks in the basic subjects should be taken for purposes of calculating the marks. Sd/ M.Muniswamy, Sd/ R.V. Bidap, Secretary I/C Chairman"
The Question is, whether the eligibility list prepared as per the above
resolution was in accordance with Rule 5 of the Rules.
Rule 5 provides:
"Eligibility of candidates for the interview – (1) For purposes of selection of candidates for the interview, the selecting authority shall prepare a list of names of candidates on the basis of the percentage of total marks secured in the qualifying examination in the order of merit and if two or more candidates have secured equal percentage of total marks in the qualifying examination, the order of merit in respect of such candidates shall be fixed on the basis of their age, the person or persons older in age being placed higher in the order of merit. From among the candidates whose names are included in such list, as far as may be such number of candidates as is equal to four times the number of vacancies notified, selected in the order of merit shall be eligible for the interview. (2) Omitted. (3) For the purposes of this Rules – (a) 'qualifying examination' means the examination or examinations prescribed as the minimum qualification required for appointment in the rules of recruitment to the cadre or post concerned. (b) Where the qualifying examination consists of more than one examination the percentage of total marks secured in the qualifying examination shall be the average of the percentage of total marks secured in those examinations."
(Rest omitted as unnecessary) On examination of the above rule, it becomes clear that the Commission shall
prepare a list of names of candidates on the basis of the percentage of total marks
secured in the qualifying examination in the order of merit. The qualifying
examination means the minimum qualification required for appointment in the rules of
recruitment to the post concerned. The rule also provides that where the qualifying
285
examination consists of more than one examination the percentage of total marks
secured in the qualifying examination shall be the average of the percentage of total
marks secured in those examinations.
In the relevant cadre and recruitment rules, the qualifying examination
prescribed for the post of Lecturers is First or Second Class Master's Degree. The
petitioner has passed Master of Arts degree examination from the Bangalore
University. It is admittedly a two years course in which the student has to pass two
University Examinations – one at the end of the first year called 'Previous First
Examination' and, another at the end of the Second Academic Year. It is thus seen
that the qualifying examination or the minimum qualification prescribed under the
Cadre Rules consists of two University examinations and the Commission ought to
have taken the average of the percentage of total marks in those two examinations.
The eligibility list prepared by the Commission overlooking the marks secured
by the petitioner in the previous First Examination of the Master of Arts Degree
Course was therefore, contrary to Rule 5(3)(b) of the Rules.
In the result, the rule issued in this petition is made absolute and a mandamus
shall issue the Commission to consider the case of the petitioner in accordance with
law and in the light of the observation made.
In the circumstances, I make no order as to costs.
***
286
1981 (1) SLR 469 KPSC Vs. N.C. Hugar (Kar.)
(Full Bench) Held – When a particular qualification is prescribed as the minimum qualification for recruitment unless the candidate possesses the said minimum qualification he is ineligible for selection for appointment. Even by possessing the higher qualification without possessing the prescribed certificate, Degree or Diploma a person does not become eligible. Higher qualification – Determination of – It is not correct to assume that degrees are higher than diplomas or certificates – Diplomas or certificates conferred by some Institutions enjoy higher status in the academic world than the degrees conferred by other Institutions. Qualifications for a post prescribed under the statutory rules – It is not open to the Public Service Commission to embark upon an investigation of the question as to whether the qualification possessed by the candidate is higher than the prescribed qualification in as much as such power is not conferred on the Public Service Commission – The power of prescribing qualifications is with the Rule making authority.
***
287
1982 (2) Kar.L.J. 345 W.A. Nos. 629 to 632 /1981
D.D. 10.2.1982 State of Karnataka Vs. Harish
Karnataka Recruitment of Gazetted Probationers (Class I and Class II posts Appointment by Competitive Examination) Rules, 1966 – Reservation for ex-military personnel. Where a combined and common direct recruitment for any category of posts in several services or departments is made, the reservation for any reserved category need not be worked out on the basis of the aggregate of the numbers of posts in all such services or departments for which such combined recruitment is made; and it is permissible to apply the percentage of reservation to the number of posts, in each service or department. CHANDRASHEKHAR. C.J., delivered the following:
JUDGMENT These appeals are from the common order of Rama Jois, J., in W.P.Nos.1637
to 1639 and 3725 of 1980. Respondents 1 and 2 therein the State of Karnataka and the
Public Service Commission (hereinafter referred to as the Commission), have
presented WAs Nos.2097 to 2100 of 1980 have been presented after obtaining the
leave of the Court by four persons who were not parties to writ petitions, but felt
aggrieved by the order of the learned single Judge therein.
2. The writ petitioners (who will hereinafter be referred to as the petitioners)
are ex-servicemen and where candidates at a competitive examination conducted by
the Commission for making selection for appointment by way of direct recruitment to
certain categories of Class-I and Class-II posts in certain specified Departments of the
State Government, under the provisions of the Karnataka Recruitment of Gazetted
Probationers (Class-I and Class-II Posts Appointment by Competitive Examinations)
Rules, 1966 (hereinafter referred to as the Gazetted Probationers Recruitment Rules).
In the writ petitions, the grievance of the petitioners was that the Government and the
Commission had reserved for Ex-servicemen lesser number of posts than the number
required to be reserved under Rule 9 of the Karnataka State Civil Services (General
Recruitment) Rules, 1957 (hereinafter referred to as the General Recruitment Rules).
3. Though there are separate Cadre and Recruitment Rules for most of the
Departments of the Government, the Gazetted Probationers Recruitment Rules provide
for a common direct recruitment to certain categories of Class-I and Class-II posts in
those Departments on the basis of a common competitive examination to be held by
the Commission.
288
4. By its Notification dated 1.7.1978 (published in Kar. Gaz. On 6.7.1978), the
Commission invited applications for direct recruitment of Gazetted Probationers for
Class-I and Class-II posts in certain departments under the Gazetted Probationers
Recruitment Rules. In that notification, a total number of posts to be filled by such
direct recruitment in each Department, the numbers of posts reserved for Ex-military
personnel and various categories of Backward Classes, had been set out as hereunder:
xx xx xx
5. The petitioners were among the candidates in such competitive
examination. They appeared for the written examination and the viva-voce. Their
grievance is that they were not selected in view of the reduction of the number of posts
reserved for Ex-Military personnel under the subsequent notification issued by the
Commission in pursuance of the Government Order, G.O.No.DPAR 28 SBC 79 dated
25.9.79. That Government Order substituted a new roster for the roster under the
earlier Government Order, G.O.No.DPAR 1 SBC 77 dated 4.3.1977. Under the latter
notification of the Commission, the reservation for Ex-Military Personnel and various
categories of Backward Classes, was as follows:
xx xx xx
6. As against 4 posts in Class-I reserved under the earlier notification, only 1
post was reserved under the later notification, for Ex-Military personnel.
7. In the writ petitions, the petitioners contended that the reservation under the
later notification was not in accordance with Rule 9 of the General Recruitment Rules
and that 4 posts in Class-I category and 7 posts in Class-II category, should have been
reserved for Ex-Military personnel. On the other hand, the reservation made under the
later notification of the Commission was sought to be justified by learned Counsel for
the respondents in the writ petitions. The learned single Judge substantially upheld the
contention of the petitioners, allowed the writ petitions and issued a mandamus
directing the Commission to revise the list of selected candidates prepared by it on the
basis of the competitive examination and to reserve for Ex-Military personnel ten per
cent of the total number of Class-I posts advertised and ten per cent of Class-II posts
advertised. He gave a further direction to the Commission to take into account for
purposes of reservation for Ex-Military Personnel such number of posts in the
respective categories which were not taken into account for purposes of reservation in
the earlier selection to these cadres and to publish a revised list of selected candidates
for Class I and Class II Posts.
289
8. The correctness of the order of the learned single Judge has been challenged
in these appeals.
9. Before dealing with the rival contentions of learned Counsel, we shall set
out sub-rule (1) of Rule 9 of the General Recruitment Rules which provides for
reservation for Ex-servicemen:
"(1) Notwithstanding anything contained in the rules of recruitment specially made in respect of any service or post, if in such rules of recruitment direct recruitment is prescribed as one of the methods of recruitment, the percentage or number of vacancies set apart for that method shall be reduced by ten percent or by such number as is equal to ten percent of the vacancies and the percentage or number so reduced shall be filled by direct recruitment from among ex-servicemen and members of the families of persons who, while serving in the Armed Forces of the Union, were either killed or permanently disabled. Explanation.- For the purpose of this sub-rule 'members of the family' means the wife or husband, as the case may be, and children and step children wholly dependent on the person who served in the Armed Force of the Union.
10. Sub-rules (1) and (2) of Rule 3 of the Gazetted Probationers Recruitment
Rules, read:
3. Application:- (1) The provisions of these rules shall be applicable in respect of direct recruitment to the cadres in State Civil Services Class I and Class II specified in column 3 of the Schedule to these rules relating to the services specified in the corresponding entry of Column 2 of the said Schedule.
(2) These rules shall have effect notwithstanding anything to the
contrary contained. (i) in the Cadre and Recruitment Rules for the time being in force applicable to the Cadres in the State Civil Services referred to in sub-rule (1), or (ii) in the Mysore (Karnataka) State Civil Services (General Recruitment) Rules, 1957.
11. The schedule to the Gazetted Probationers Recruitment Rules sets out the
services and categories of posts therein for which recruitment of Probationers can be
made under those Rules.
12. The material question that arises in these appeals is, while making a
common or combined recruitment for certain categories of Class-I and Class-II posts
in several services or departments, whether the reservation for Ex-Military personnel
should be made on the basis of the total number of Class-I posts and the total number
of Class-II posts in all such services or departments, or whether such reservation
should be made on the basis of the number of Class-I or Class-II posts in each service
or department. The State Government and the Commission have done the reservation
290
or the latter basis, but the learned single Judge held that such reservation should be
done on the former basis.
12a. The argument on behalf of the State and the Commission has been
summarized by the learned single Judge thus: Though Rule 9 requires that ten percent
of direct recruitment vacancies should be reserved in favour of ex-Military Personnel,
such reservation has to be made on the basis of the number of post in each cadre under
each appointment authority and not on the basis of total number of posts in various
cadres in different departments of the State Government. In the present recruitment of
Gazetted Probationers, as regards Class I Posts, it was only in the cadre of Assistant
Commissioners the number of posts to be filled exceeded 10 and in each of the other
cadres the number of Class I posts to be filled was less than 10. Therefore, only one
Class I post was required to be reserved for Ex-Military Personnel in the cadre of
Assistant Commissioners. Similarly as regards Class II posts, it was only in the cadres
of Tahsildars, Assistant Commercial Tax Officers and Assistant Registrars of Co-
operative Societies the number of posts in each of those cadres exceeded 10. On the
basis of the numbers of such posts, 3 posts, 1 post and 2 posts respectively were
reserved for Ex-Military Personnel. As the number of Class-II posts to be filled in
other departments was less than 10, no class II post could be reserved in any of those
other Departments.
13. However, the above contention was not accepted by the learned single
Judge whose reasoning reads thus: The condition of eligibility of candidates for
recruitment to all the posts for which a combined recruitment is made, are common
and the selection is required to be made on the basis of the combined competitive
examination as prescribed in the Gazetted Probationers Recruitment Rules. Though
several posts in respect of which recruitment is sought to be made, are in different
departments of the State Government, the Gazetted Probationers Rules are specially
made in respect of all Class I and Class II posts in respect of which recruitment is
provided under those Rules. Therefore, in view of Rule 9 of the General Recruitment
Rules, 10 percent of the total number of Class I posts to be filled and 10 percent of
Class II posts to be filled under the common recruitment should be reserved for Ex-
Military personnel.
14. It is instructive to examine how the reservation for Backward Classes is
worked out in direct recruitments to State services. Separate reservation has been
provided for Scheduled Castes, Scheduled Tribes, Backward Classes, Backward
Communities, Backward Tribes and Backward Special Groups at separate percentages
291
varying from 3 to 20 percent. Appendix II to the Government Order No.DPAR 1 SBC
77 dated 4.3.1977 sets out a roster. Taking a cycle of 100 appointments, the roster
provides the order in which appointments, should be made from the several categories
of Backward Classes and the unreserved category (General Merit). That roster is as
follows:
1. General Merit 2. Scheduled Castes 3. Backward Communities 4. General Merit 5. Backward Castes
15. The roster system ensures that the separate reservation for all categories of
posts is given full effect over a period, though it is not possible to give effect to such
reservation in each recruitment on account of smallness of the number of posts for
which recruitment is made at a time.
16. Sri. H.B.Datar, learned Counsel for the appellants in W.A.Nos.2097 to
2100 of 1980, invited our attention to the roster set out in Appendix II to the
Government Order, G.O.No.DPAR 28 SBC 79 dated 25.9.79, which ensures that
every tenth post in each category of posts, is filled by a candidate belonging to the
category of Ex-Military Personnel. The relevant part of that roster, is as follows:
1. Scheduled Caste 2. Schedule Tribe 3. General Merit 4. Backward Community 5. Backward Special Group 6. Scheduled Caste 7. General Merit 8. Backward Caste 9. General Merit 9. (A) Ex-Military Personnel
17. All that Rule 9 of the General Recruitment Rules provides is that if rules
of recruitment in respect of any service or post, prescribe direct recruitment also, one-
tenth of the vacancies set apart for such direct recruitment, shall be reserved for Ex-
Military Personnel. The rule does not specifically provide that where there is a
common or combined direct recruitment for different categories of posts in several
services or Departments the number of posts reserved for Ex Military Personnel
should be reckoned on the basis of total number of posts in all services of departments
for which such combined direct recruitment is made. In the absence of such specific
provision, it is open to the Government to give effect to such reservation in any
reasonable manner. If the roster system in respect of each category of posts in each
service of department, is a reasonable method of giving effect to the reservation for
several categories of Backward Classes, there is no reason to hold that such a roster
292
system is not a reasonable method for giving effect to the reservation for Ex-Military
personnel.
18. No doubt, the adoption of the roster system may result in postponement
and consequent delay in Ex-Military personnel in getting the percentage of posts
reserved for them, as it has happened in the present case. The learned Advocate
General pointed out that the method of reservation ordered by the learned Single Judge
may result in uneven distribution of candidates of reserved categories in different
services or departments – too many of them in certain services or departments and too
few of them in certain other services or departments and that the roster system ensures
uniform distribution of reserved categories of candidates in all services and
departments. In our opinion, this argument of the learned Advocate General is well
founded.
19. We are unable to agree with the conclusion of the learned single Judge that
where a combined or common direct recruitment for any category of posts in several
services of departments is made the reservation for any reserved category should be
worked out on the basis of the aggregate of the number of posts in all such services or
departments for which such combined recruitment is made and that it is not
permissible to apply the percentage of reservation to the number of posts in each
service or department.
20. As it is permissible for the State Government and the Commission to
adopt a roster system for giving effect to the reservation for Ex-Military personnel, the
direction given by the learned single Judge to take into account the number of posts in
the respective categories which were not taken into account for the purposes of
reservation in the earlier recruitment to those cadres, as, in our opinion, redundant.
21. In the result, we allow these appeals, reverse the impugned common order
of the learned single Judge and dismiss the writ petitions.
22. In these appeals, we direct the parties to bear their own costs.
23. In para 13 of his order, the learned single Judge has noticed that a
submission was made by the learned Counsel for the petitioner that the name of
Lingamaiah who claimed reservation in favour of Ex-Military Personnel, had been
included in the list of selected candidates, though he had intimated the Commission
293
that he was not pressing his application. The learned single Judge observed that his
was a matter which the Commission should look into.
24. The aforesaid observation of the learned single Judge remains undisturbed
by this judgment.
***
294
ILR 1985 Karnataka 4195 Gayathri Vs. Karnataka Public Service Commission
Held – Though the cadre and recruitment rules puts the posts of Lecturers in
one entry, it has got to be read as many entries as there are subjects, namely, Lecturers in Chemistry, Lecturers in Physics, Lecturers in English, Lecturers in History and so on, and, for each category of the above posts, the minimum qualification prescribed is First or Second Class Master's degree in the concerned subject. Therefore, when the posts of Lecturers are advertised inviting applications, the Commission should specify the number of posts in each subject and the reservation should also be specified subjectwise following the roster prescribed in Appendix-II. This is the only way of ensuring equality of opportunity in matters relating to employment guaranteed under Article 16(1) of the Constitution.
ORDER Rama Jois, J. In this Writ Petition in which the petitioner has questioned the legality of the
selection, made by the Karnataka Public Service Commission ('the Commission' for
short), of persons for appointment as Lecturers in the Department of Collegiate
Education of the State Government, the following question of law arises for
consideration.
Whether in making selection for appointment to the cadre of Lecturers in the
Collegiate Education Department of the State Government the reservation of posts
provided for by the State Government by an order made under clause (4) of Article 16
of the Constitution should be effected subjectwise and whether if it is given on the
basis of total number of posts in respect of which selection is made by the
Commission, it would be violative of Article 16(1) of the Constitution?
2. The facts of the case, in brief, are as follows: The petitioner passed M.Sc.,
Degree in Physics of the Mysore University in I Class. The Commission, by its
notification dated 20.1.82 invited applications for 59 (fifty nine) posts of Lecturers in
the department of Collegiate Education in different subjects specified in the
notification. The relevant portion of the notification reads:
"xxx xxx xxx
Statement showing the particulars of the posts for which applications are called for:
xxx xxx xxx
2. No. of vacancy/ies advertised, 59 posts of Lecturers in the Department designation of the vacancy/ of Collegiate Education in the following vacancies and department subjects: English : 07
Kannada : 06
Telugu : 01
295
Urdu : 01
History : 08
Economics : 07
Political Science : 06
Sociology : 02
Geography : 01
Commerce : 09
Physics : 04
Chemistry : 02
Mathematics : 02
Botany : 02
Geology : 01
3. Scale of pay Rs. 750-50-1000-60-1300-75-1525
GROUP-B
4. Minimum qualification prescribed Gazetted : Must be a holder of a degree for the posts not lower than a second class Master's degree of a University established by law in India with the concerned subject as a major subject at the master's degree level. Xxx xxx xxx
5. Classification of Vacancies Ex-MP 6 posts SCs 7 posts STs 1 post BTs 3 posts BCT 4 posts BSG 8 posts BCM 10 posts GM 20 posts ---------- 59 posts ---------- Among Ex-MPs SCs-2, STs-1, BCM-1, BCT-1 and BSG-1. Xxx xxx xxx --------------------------------------------------------------------------------------------------------
As may be seen from the notification reservation in favour of backward classes is
provided for on the basis of total number of posts.
2a. The petitioner being eligible to compete for selection for the post of
Lecturer in Physics submitted her application to the Commission. She was called for
interview by the Commission and was interviewed. Thereafter, the list of selected
candidates was published as per the notification dated 18th June 1983, copy of which is
produced as Annexure-C which has been produced along with memo dated 13.1.1984.
296
The petitioner was not selected. Aggrieved by the said selection, the petitioner has
presented this petition.
3. The challenge to the legality of the selection made by the Commission is on
the following basis : The posts of Lecturers in different subjects in the Collegiate
Education Department carried an identical pay scale of Rs. 750-50-1000-60-1300-75-
1525. A candidate for being eligible for the post of Lecturer in a particular subject has
to possess a Master's degree in the concerned subject not lower than second class of a
University established by law. Though applications were invited for 59 posts of
Lecturers in identical pay scale in a common advertisement, still the eligibility of
candidates is distinct and separate in respect of each of the subjects. In other words, a
candidate possessing Master's degree like the petitioner could compete only for the
posts of Lecturers in Physics as she is not eligible for selection for the posts of
Lecturer in any other subject. That being the position, the reservation of posts in
favour of persons belonging to S.C., S.T. and other backward classes, as provided for
by the State Government, should have been provided for subjectwise and the failure to
do so has resulted in denial of equality of opportunity in matters relating to
employment under the State guaranteed to the petitioner under Clause (1) of Article 16
of the Constitution.
4. In order to demonstrate as to how the petitioner has been adversely affected
on account of the manner of reservation provided for, the petitioner has further a
statement consisting of the following particulars.
No.of No.of candidates selected in each category Subject posts GM BCG BT BCM BSG SC ST EX.MP Total English 07 7 - - - - - - - 7
Kannada 06 - 2 1 1 - 2 - - 6
Telugu 01 1 - - - - - - - 1
Urdu 01 - - - 2* - - - - 2*
History 08 3 - - 2 1 2 - - 8
Economics 07 - - 2 1 2 2 1 - 8
Political Science 06 2 - - - 2 - - 1 6
Sociology 02 - - - - 2 1 - - 3
Geography 01 - - - 1 - - - - 1
Commerce 09 7 1 - - 1 - - - 9
Physics 04 1 2 - 2 - - - - 5*
Chemistry 02 - - - - 1 1 - - 2
Mathematics 02 1 - - 1 - - 1 - 3*
297
Botany 02 - 1 - 1 - 1 - - 3*
Geology 01 - 1 - - - - - 1 1
23 7 3 11 9 9 2 1 65
*In excess of the number of vacancies advertised."
5. Learned Counsel for the petitioner stated that the method of reservation
followed by the Commission has resulted in the denial of equal opportunity in relation
to selection for appointment and in this behalf submitted as follows: In the subject of
English as against 7 posts, all the seven posts have been made available to general
merit. Similarly in the subject of Commerce for 9 posts, 7 posts have been made
available for general merit. In the case of Physics, though 4 posts were advertised
actual selection has been made for 5 posts. In respect of these 5 posts, one candidate
belonging to general merit and two candidates each belonging to backward caste and
backward community have been selected. If the reservation was effected subjectwise
and the Government. Order regarding the roster required to be followed in relation to
direct recruitment was observed, as no candidate belonging to backward special group
was available for selection against the 5th vacancy earmarked in the roster for
backward special group, the petitioner was entitled to be selected against the said
vacancy in view of paragraph 6 of the Government Order dated 4th March 1977 which
regulates the reservation of posts.
6. To the petition, the petitioner has impleaded the five candidates selected for
appointment as Lecturers in Physics as respondents 3 to 7. But if the contention of the
petitioner that the reservation was required to be effected on subjectwise basis were to
be accepted, the entire selection would have to be redone by the Commission. In the
circumstances, when the matter came up for preliminary hearing on 20th July 1983, the
learned Counsel for the petitioner sought permission to prosecute the Writ Petition in a
representative capacity and accordingly made an application under Order 1, Rule 8 of
the Code of Civil Procedure.
7. As the question raised in the Petition is one of general importance and
affects large number of persons seeking selection for appointment before the
Commission wherever reservations are made on the basis of the total number of posts
even though the eligibility of candidates is distinct and separate, the application was
allowed on 20th July 1983 and the petitioner was permitted to prosecute the Petition in
a representative capacity. The petitioner was also directed to take a notice by
publication in Deccan Herald English daily, calling upon persons interested either to
supporting or opposing the Petition to apply to this Court to be made a party on or
298
before 1st September 1983. In terms of the said order, a Public notice has been issued.
However, no one has applied for being impleaded as a party.
8. On facts, there is no dispute in this case. If the reservation provided for by
the Commission on the basis of total number of posts of Lecturers in respect of which
selection is made, is not discriminatory the procedure followed by the Commission as
laid down in the Government Order dated 6th October 1981 issued pursuant to the
judgment of this Court in Annegowda –vs- Karnataka Public Service Commission,
would be in accordance with law. If, on the other hand, the Commission was bound to
follow the roster, prescribed for regulating reservation of posts while making direct
recruitments, the petitioner was entitled to be selected against one of the five posts of
Lecturers in respect of which the selection has been made by the Commission. It is in
view of this position, the question of law set out first arises for consideration.
9. The recruitment to the posts of Lecturers in the Department of Collegiate
Education is regulated by the Rules called the Karnataka Education Department
Services (Collegiate Education Department) Cadre and Recruitment Rules, 1964. The
relevant portions of the Rules concerning the posts of Lecturers reads as follows:
"SCHEDULE
Category Method of Minimum qualifications and Of posts Recruitment period of probations Xxx xxx xxx xxx 9. Lecturers 50% by direct recruitment For Direct Recruitment: 50% by promotion of Demon- I or II Class Master's degree strators and Tutors subject to Age: Relaxable upto 33 years in their possessing a II Class case of persons with teaching Master's degree in respective experience. No age limit in case Subjects. Of Government Servants in service Probation: One year. "
There is no dispute that though the entry relating to posts of Lecturers is one entry in
the Recruitment Rules, the posts of Lecturers exist in different subjects according to
the subjectwise requirement of the Colleges as assessed and determined by the Head
of the Department. Therefore, whenever requisition is sent by the Head of the
Department to the Commission not only the total number of posts of Lecturers
required has to be specified, but also the number of posts of Lecturers in each subject
has got to be specified. There is also no dispute that a person possessing master's
degree qualification in the concerned subject only, is eligible for being selected as
Lecturer in the concerned subject and consequently the competition for purposes of
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selection would naturally be among the aspirants for the posts Lecturers in the
concerned subject.
10. Now coming to the provision of the Government Order providing for
reservation of posts under Class (4) of Article 16 of the Constitution, the procedure
required to be followed in making selecting adhering to reservation of posts have been
laid down in the Government Order dated 4th March, 1977. The relevant portion of
the Government Order reads:
"GOVERNMENT OF KARNATAKA
Sub: Classification of backward classes for purposes of reservation of Appointments and posts under Article 16(4) of the Constitution. READ:
(1) Government Order No.GAD 17 SRR 74, dated 29th July 1974 (2) Government Order No.GAD 6 SBC 75, dated 3rd May 1975 (3) Official Memorandum No.GAD 6 SBC 75, dated 31st October 1975 (4) Government Order No.GAD 2 SBC 75, dated 9th July 1975 (5) Government Order No.SWL 12 TBS 77 dated 22nd February 1977.
ORDER NO.DPAR 1 SBC 77, BANGALORE
DATED: 4TH MARCH, 1977 In the Government order dated 9th July 1975, orders were issued in
supersession of all the earlier orders for making reservations in appointments and
posts in the State Civil Services for S.C., S.T. and other Backward Classes and citizens
not adequately represented in the State Civil Services. In the Government Order dated
22nd February 1977 Government after considering the recommendations of the
Backward Classes Commission, have determined under Article 16(4) of the
Constitution of India the backward classes of citizens who are not adequately
represented in the State Civil Services and have directed that reservation in
appointments and posts shall be made for these classes to the extent indicated in that
order. These reservations will be in addition to the reservations of 15 percent for S.C.
and 3 percent for S.T.
(2) Accordingly, Government are pleased to direct that reservations in
appointment and posts in the State Civil Services shall be made or the following
classes of citizens to the extent indicated against them.
I. (1) Scheduled Caste, as defined in the Constitution of India … 15%
(2) Scheduled Tribes, as defined in the Constitution of India … 3%
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II. Other Backward Classes viz.,
(1) Backward Communities … 20%
(2) Backward Castes … 10%
(3) Backward Tribes … 5%
(4) Special Group … 5%
The expressions Backward Communities, Backward Castes, Backward Tribes
and Special group mentioned in item II above, shall have the same meaning as in the
Government Order No.SWL 12 TBS 77, dated 22nd February 77. these are indicated
in Appendix-I to this Government Order.
(3) Appointments and posts in the State Civil Services shall, hereafter, be
reserved for the S.C. S.T. and other Backward Classes to the extent of the percentages
indicated in para 2. The reservations shall be made for each category of posts, under
each appointing authority according to the percentages indicated. For the purpose of
making reservations and calculating the number of vacancies to be reserved for each
category of Backward Classes indicated in para 2, a rotation of 100 vacancies shall be
followed for each category of posts under each appointing authority. The rotation of
vacancies shall be as indicated in Appendix-II to this Government Order. The rotation
of vacancies shall be a running account till the hundredth vacancy is reached. For
example, if on the first occasion of recruitment, 21 posts have been filled on the next
occasion of recruitment the classification will start from 22nd point and so on. All
appointing authorities shall maintain separate Registers indicating the rotation for each
category of posts under them. The appointing authorities shall intimate to the Public
Service Commission other selecting authorities the number of vacancies to be filled by
direct recruitment duly classified in accordance with the rotation indicated in
Appendix-II.
4. The Karnataka Public Service Commission or other selecting authorities
shall, for the purpose of ensuring proper reservations ordered in this Government
Order, follow the mode of selection indicated in Appendix III to this Government
Order.
5(a) If in a recruitment to a category of posts or service persons belonging to
the S.C. or S.T. who are suitable for appointment are not available for being selected
for vacancies reserved for such Castes or Tribes such vacancies shall be filled by
selection of candidates belonging to the Backward Communities or Backward Castes
in the ratio of 2:1 as far as possible. If candidates belonging to the Backward
Communities or Backward Castes are not available the said vacancies may be filled up
301
on the basis of general merit. In such cases when the vacancies reserved for S.C. or
S.T. are filled by candidates not belonging to these castes or Tribes, the vacancies lost
S.C. or S.T. shall be carried to the next occasion of recruitment to the same category
of posts or services.
(b) On the second occasion of recruitment vacancies shall be reserved for S.C.
S.T. and other Backward Classes in accordance with the provisions of this Order. Out
of the vacancies so reserved for the Backward Communities and Backward Castes, the
number of vacancies carried forward in accordance with Clause (a) shall be deducted
in the same reason as in the said clause and added to the number of vacancies reserved
for S.C. and/or S.T. as the case may be. Vacancies so reserved shall be filled as
indicated in para (a), if suitable candidates belonging to the S.C. and S.T. are not
available. The vacancies filled by candidates not belonging to these Castes and
Tribes, shall be carried forward to the next recruitment.
(c) On the third occasion of recruitment to the same category of posts or
service. The number of vacancies reserved for S.C. and S.T. carried forward from the
second occasion of recruitment in accordance with clause (b) shall similarly be added
to the number of vacancies reserved on the third occasion for S.C. and S.T. and the
number reserved for Backward Communities and Backward Castes similarly reduced.
(d) If on the third occasion of recruitment the vacancies reserved for S.C. and
S.T. on that occasion and those carried forward from the first and second occasions
cannot be filled by reason of the non-availability of suitable candidates belonging to
the S.C. and S.T. such vacancies shall be filled by selection of suitable persons on the
basis of general merit and there shall be no further carry forward of vacancies to the
next occasion of recruitment.
(6) In a recruitment to a category of posts or service if persons belonging to the
Backward Tribes or the Special group are not available for being selected for the
vacancies reserved for them, such vacancies shall be filled by selection of candidates
on the basis of general merit."
It may be seen from paragraph-3, the reservation of posts to the extent provided for in
the Government Order is required to be made for each category of posts under each
appointing authority and in the matter of implementing the reservation of posts the
roster prescribed in appendix-II to the Government Order was required to be follows.
Appendix-II annexed to the said Government Order was replaced by Government
302
Order dated 26th September 1979. The Appendix-II to the Government Order
4.3.1977 as substituted by Government Order dated 26th September 1979 reads:
"1. R:SC 2. R:ST 3. G:M 4. R:BCM 5. R:BSG
6. R:SC 7. GM 8. R:BCT 9. GM 10. R:BCM
11. R:BSG 12. GM 13. R:SC 14. R:BSG 15. GM
16. R:BCM 17. R:BCT 18. R:BT 19. GM 20. R:SC
21. R:BCM 22. GM 23. R:BSG 24. GM 25. R:BCM
26. GM 27. R:SC 28. :GM 29. R:BCT 30. R:BCM
31. GM 32. R:BSG 33. R:ST 34. R:SC 35. GM
36. R:BT 37. R:BCM 38. :GM 39. R:BCT 40. :GM
41. R:SC 42. R:BSG 43. :GM 44. R:BCM 45. :GM
46. R:BSG 47. :GM 48. R:SC 49. R:BCT 50. :GM
51. R:BCM 52. :GM 53. R:BSG 54. R:BT 55. R:SC
56. :GM 57. R:BCM 58. :GM 59. R:BCT 60. R:BSG
61. :GM 62. R:SC 63. R:BCM 64. :GM 65. R:BSG
66. R:ST 67. :GM 68. R:BCM 69. R:SC 70. :GM
71. R:BCM 72. R:BT 73. :GM 74. R:BCM 75. :GM
76. R:SC 77. :GM 78. R:BSG 79. :GM 80. R:BSG
81. R:BCM 82. :GM 83. R:SC 84. R:BSG 85. :GM
86. R:BCM 87. R:BSG 88. :GM 89. R:BCT 90. R:SC
91. R:BT 92. R:BSG 93. R :BCM 94. :GM 95. R:BCT
96. R:BSG 97. R:SC 98. :GM 99. R:BCM 100. R:BCT
N.B. : G.M. : General Merit 34
R :BCM : Reserved for Backward Communities 18
R : SC : Reserved for Scheduled Castes 15
R : BCT : Reserved for Backward Castes 10
R : BT : Reserved for Backward Tribes 05
R : BSG : Reserved for Backward Special Group 15
R : ST : Reserved for Scheduled Tribes 03
--- 100 --- In Appendix-III to the Government Order Mode of Selection was prescribed. It reads:
MODE OF SELECTION (a) The appropriate Selecting Authority shall first prepare consolidated list of all eligible applicants irrespective of classes to which they belong arranging them in the order of merit (hereinafter called the First List.
303
(b) The Selecting Authority will then prepare from out of the First list a Second list (hereinafter called the Second list) containing the names of applicant equal to the number of posts to be filled up on the basis of general merit (i.e. the number of posts other than those reserved in favour of S.C. S.T. and other Backward Classes) arranging them in the order of merit commencing with the name in the First List. (c) The Selecting Authority will then prepare from out of the First list excluding the portion forming the Second List, a Third List, (hereinafter called the Third List) containing the names of applicants belonging to the S.C. S.T. Backward Communities, Backward Castes, Backward Tribes and Special Group equal to the number of vacancies reserved for each category in the order of merit determined in the First List. (d) The Selection Authority will then prepare a final list of selected candidates for appointment to the category of posts for which selection is made by arranging the names of candidates included in the Second List and the Third List in the order of merit." Obviously, the above mode of selection was prescribed having regard to the selection
required to be made to posts for which common conditions of eligibility were
prescribed in the relevant rules of recruitment. Even though the same mode of
selection was impracticable and inapplicable to a cadre like that of Lecturers which
consisted of posts of Lecturers in different subjects and consequently with different
conditions of eligibility the Commission was following the said procedure as no other
procedure was prescribed. The following of that procedure had resulted in defeating
the reservation of posts. In the circumstances, candidates who were denied selection
against posts reserved for the concerned backward class category, to which they
belonged, had questioned the legality of the procedure followed by the Commission.
That question was considered in the case of Annegowda. Thereafter, again the matter
came up for consideration in Munireddy –vs- K.P.S.C. In both these judgments, it
was held that the mode of selection prescribed in Appendix III was inapplicable to the
cadres which consisted of posts with different conditions of eligibility. It was further
held that even though the Commission was effecting reservation of posts on the basis
of total number of posts advertised and not on subjectwise basis while making
selection for the post of Lecturers, the Commission was bound to select such number
of candidates belonging to S.C., S.T. and other backward classes as are equal to the
number of posts reserved and it was only after providing for available candidates
falling under the reserved category in the subjects for which they were eligible, the
Commission could proceed to make the selection of candidates under general merit.
11. In implementation of the above judgment, the State Government has
issued the order dated 6th October 1981 on which reliance is placed in the Statement of
objections. The said Government order reads:
304
"PROCEEDINGS OF THE GOVERNMENT OF KARNATAKA
Sub: Reservation of vacancies for SCs/STs and other categories of Backward Classes under Article 16(4) of the Constitution of India – Mode of selection to teaching posts in the Departments Of Collegiate Education and Medical Education. READ: Government Order No.DPAR 1 SBC 77, dated 4.3.77. PREAMBLE: Selections to post under the State Civil Services were being made by Selecting Authorities following the Mode of selection prescribed in Appendix-III to the Government Order dated 4.3.1977 read above. It has come to the notice of Government that there is difficulty in selecting candidates to posts like Lecturers in the Department of Collegiate Education and Medical Education following the mode of selection prescribed in Appendix-III to Government Order dated 4.3.1977 as while making recruitment to such posts. Classification of vacancies for reservation of posts in favour of S.C./S.T. and backward classes is made on the basis of total number of posts but selection is required to be made subjectwise. The High Court of Karnataka while disposing the case in Writ Petition No.810 of 1979 has suggested a procedure to be followed in making selection to posts like Lecturers where selection in more than one subject is required to be made and posts are reserved in favour of S.C., S.T. etc., on the basis of total number of posts.
ORDER Considering the difficulties and the suggestions made by the High Court as
indicated above, Government are pleased to direct that in partial modification of the
Orders issued in para 4 of the Government Order No.DPAR 1 SBC 77, dated 4.3.1977
the Mode of Selection to teaching posts in the Departments of Collegiate Education
and Medical Education shall be as indicated below:
Mode of Selection to teaching post in Departments of Collegiate Education and Medical Education.
(a) The appropriate Selection Authority shall first prepare consolidated list of
all eligible applications irrespective of classes to which they belong, arranging them in
the order of merit (hereinafter called the First List).
(b) The Selecting Authority will then prepare from out of the First List, a
Second List (hereinafter called the Second List) selecting the best among the
candidates eligible for selection against the posts reserved for each category, namely,
S.C., S.T. Backward Communities, Backward Castes, Backward Tribes and the
Special Group, but having regard to the subject in which vacancy exists upto the
extent of posts reserved for each of these categories.
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(c) Thereafter the Selecting Authority will prepare from out of the First list
excluding the names forming the Second List, a Third List (hereinafter called the
Third list) selecting candidates strictly according to merit, but having regard to the
subject in which vacancy exists upto extent of posts reserved for general merit
category.
(d) The Selecting Authority will hen prepare the final list of selected
candidates for appointment to the category of posts for which selection is made by
arranging the names of candidates included in the Second List and the Third List in the
order of merit.
By Order and in the name of the Governor of Karnataka,
Sd/- A.K.Someshwar,
Dy. Secretary to Govt., D.P.A.R. (Service Rules)."
There is no dispute that the Commission has strictly followed the said Government
Order in making the impugned selections.
12. As stated earlier, in the earlier two judgments, referred to above, the
reservation of posts provided for on the basis of total number of posts advertised and
not on subjectwise basis, was not questioned. The only limited question raised in
those petitions was: Whether the procedure prescribed in Appendix-III to the
Government Order dated 4th March 1977 was applicable and by following the said
procedure the reservation of to the cadre of Lecturers having regard to the Special
features of the cadre, namely, subjectwise requirement and subjectwise eligibility. In
the said judgments it was held that the said procedure was in applicable and by
following the said procedure the reservation of posts provided for was adversely
affected and as it was obligatory for the Commission to respect the reservation first
and make the selection next the candidates eligible for selection against reserved posts
should be selected first to the extent of reservation.
13. In the present case, as already pointed out, the contention of the petitioner
is, though the posts of Lecturers constitute one cadre according to the recruitment
rules, having regard to the factual position, namely, that the said cadre consists of
Lecturers in different subjects and the constitution of eligibility for being selected for
appointment to the post of Lecturer in particular subject is the possession of the
Master's degree in the concerned subject, the posts of Lecturers in each subject has to
be considered as a separate and distinct category and the reservation has got to be
306
provided for having due regard to the roster fixed in Appendix-II to the Government
Order dated 4th March 1977.
14. It appears to me that the contention of the petitioner is well founded.
Though the cadre and recruitment rules puts the posts of Lecturers in one entry, it has
got to be read as many entries as there are subjects, namely, Lecturers in Chemistry,
Lecturers in Physics, Lecturers in English, Lecturers in History and so on, and, for
each category of the above posts the minimum qualification prescribed is First or
Second Class Master's degree in the concerned subject. Therefore, when the posts of
Lecturers are advertised inviting applications, the Commission should specify the
number of posts in each subject and the reservation should also be specified
subjectwise following the roster prescribed in Appendix II. This is the only way of
ensuring equality of opportunity in matters relating to employment guaranteed under
Article 16(1) of the Constitution. To a candidate who belongs to general merit and
who applied for the post of Lecturer in a particular subject in which he has the
Master's Degree, if all the posts of lecturers in that subject are made available for
reserved candidates on the ground that candidates belonging to reserved category
available have master's degree in that subject the candidate belonging to general merit
stands denied of the right guaranteed under Article 16(1) of the Constitution. The fact
that in some other subjects all the posts are made available to candidates belonging to
general merit is no answer to his plea of denial of equal opportunity. Therefore, the
only method by which the right guaranteed under Article 16(1) of the Constitution of
India could be ensured is to provide reservations subjectwise.
15. In fact, a similar question, namely, whether the posts of Readers in each
subject should be treated as a separate category and the reservation of posts should be
effected in respect of each subject separately had come up for consideration in the case
of Syda Husna Banu –vs- State. The writ petition was allowed on 21st November
1973 and it was held that the posts of Lecturers in each subject has to be treated as a
separate category and the reservation should be effected on subjectwise basis. That
judgment was taken in Appeal before a Division Bench of this Court in Writ Appeal
No.63 of 1974. The Writ Appeal was dismissed by judgment dated 8th April 1983.
The relevant portion of the judgment reads:
"6. From the scheme provided for selection it will be seen that the basis for selection or a Reader being the aggregate marks obtained in the qualifying examination plus the marks obtained at the interview, the selection to the post of Reader in Political Science can only be subjectwise. Since the qualifying examination for Readers in different subjects are quite different, it is not possible to acceded to the contention of the learned Advocate General that all posts of Readers must be taken as
307
one unit for the purpose of making reservation. If such a contention is accepted, then it is conceivably possible that al candidates included in such a list may be those who are qualified to teach only one subject, as against the selection required to be made for different subjects. The resultant position would then be that in the list prepared by treating all the posts of Readers as one unit, irrespective of the subject, candidates qualified in different subjects may not get themselves included in the list. Secondly, it selection of all posts of Readers is treated as an unit and aggregate marks obtained in the qualifying examination and at the interview is the basis of selection, then there might be more number of candidates for teaching a particular subject than the number of vacancies available and thirdly, there may not be a selection of a candidate for certain subjects though the vacancies are available. Thus, the very object of selecting candidates, who have proficiency in particular subject for appointment will be defeated. Hence, we have no hesitation to affirm the view taken by the learned Single Judge that the selection should be subjectwise. (7) Next, we will have to examine the mode of giving effect to the reservation orders if the selection is subjectwise (8) Para 1 of the Government Order No.GAD 42 SRR 69-1, dated 6th September 1969 issued under Article 16(4) of the Constitution provided for reservation of 3, 15 and 30 percent in favour of S.C. S.T. and Backward Classes respectively in all appointments and posts under the State Civil Services. As per para 4 of the said Order all vacancies to be filled by direct recruitment were required to be classified and arranged according to the reservation made for S.C., S.T. and Backward Classes, keeping 33 vacancies as an unit, in the manner indicated in Annexure-I of the Order. Annexure-I set out roster providing the mode in which an appointment can be made to a particular cadre of post. (9) Paras 4 to 7 of this Government Order were amended by a subsequent Government Order No.GAD 25 STR 71 dated 17.5.1971. The substituted para 4 provided for specification of percentage of reservation made for S.C. & S.T. and other classes, in all vacancies to be filled up by direct recruitment in any calendar year. (10) Para 7(1) and (b) provided for reservation in favour of the S.C., S.T. and Backward Classes while making appointment by competitive examination to Class I, II and III Posts. Para 7(A) which is relevant for the purpose of this case reads thus:
"7(A) Notwithstanding he percentage of reservation specified in paragraph-I: (a)(i) One vacancy or two vacancies as the case may be shall be reserved for candidates belonging to the S.T. where the total number of vacancies to be filled at any recruitment, is not less than five and not more than twenty or not less than twenty one and not more than twenty or not less than twenty one and not more than forty s the case may be; (ii) One vacancy or two vacancies as the case may be shall be reserved for candidates belonging to the S.C. where the total number of vacancies to be filled at any recruitment is not less than five and not more than seven or not less than eight and not more than fourteen as the case may be; (b) When any vacancy or vacancies are reserved for candidates belonging to the S.T. & S.C. under Sub-clause (i) and (ii) or clause (a) such number of vacancies if any shall be reserved for candidates belonging to other backward classes so that the total reservation in favour of S.T., S.C. and other Backward Classes shall not exceed forty
308
eight percent of the total number of vacancies to be filled in such recruitment.
Annexure-I to the Government Order dated 5th September 1969 was omitted, thereby the process of appointment by roster system stood deleted. The deletion of roster system and insertion of para 7A made it impossible to provide for reservation when the posts are less than the number mentioned therein. It would have been possible for the State Government and the KPSC to adopt roster system, if it had not been deleted, to give effect to reservation treating the recruitment subjectwise. The hindrance created by these Government Orders cannot be a good ground to treat a post as a Departmentwise instead of subjectwise for the purpose of recruitment. The unworkable procedure provided for in the subsequent order dated 17th May 1971 cannot be the basis for a bad precedent. By reason of deletion of the roster system, as provided in Annexure-I to the Government Order dated 6.9.1969 and insertion of para 7A by the subsequent Government Order dated 17th May 1971, what follows is that the reservation had to be provided depending upon the number of vacancies to be filled up and in that process evidently no reservation could be made in recruitment of two posts of Readers in Political Science. 11. The Government having realized the folly has thereafter reintroduced the roster system in its subsequent reservation Orders the latest of which being the Government Order No.DPAR 1 SBC 77, dated 4th March 1977, Para 3 of the said Government Order reads thus:
"3. Appointments and posts in the State Civil Services shall, hereafter, be reserved for the S.C., S.T. and other backward classes to the extent of the percentage indicated in para 2. The reservations shall be made for each category of posts, under each appointing authority according to the percentages indicated. For the purpose of making reservations and calculating the number of vacancies to be reserved for each category of backward classes indicated in para 2, a rotation of 100 vacancies shall be followed for each category of posts under each appointing authority. The rotation of vacancies shall be a running account till the hundredth vacancy is reached. For example, if on the first occasion of recruitment, 21 posts have been filled, on the next occasion of recruitment the classification will start from 22nd point and so on. All appointing authorities shall maintain separate registers indicating the rotation for each category of posts under them. The appointing authority shall intimate to the Public Service Commission or other selecting authorities the number of vacancies to be filled by direct recruitment duly classified in accordance with the rotation indicated in Appendix-II."
Under para 4, KPSC or other selecting authority is required to follow the mode of selection as indicated in Appendix-III for the purpose of ensuring proper reservation made in favour of those persons. Appendix-III is the same as Appendix-I to the Government Order dated 17th May 1971, incorporating the principles enunciated by this Court in Partha's case. Para 5 provides for filling up of these reserved vacancies in case candidates belonging to those categories are not available and such other contingencies. The roster system reintroduced thereby under Appendix-II came to be varied by the subsequent Government Order No.DPAR 25 SBC 79, dated 25th September 1979. By the system now in force, there is no difficulty for giving effect to the reservation made for the benefit of the S.C., S.T. and Backward Classes inadequately represented in State Civil Services, treating the recruitment as subjectwise. The procedure to be followed is self contained in paras 3, 4 and 5 of the Government Order dated 4.3.1977. In view of these changes brought about by the reservation orders issued from time to time by the Government there would no
309
injustice to the reserved categories. The contention urged to the contrary therefore fails and is rejected." In the light of the above ruling and for the reasons stated earlier, the question of law
set out first would have to be and is answered in the affirmative.
16. Coming to the facts of this case, it may be seen that according to the roster
prescribed the reservation should have been effected in the following manner for five
posts of Lecturers in Physics for which selection was made:
(i) Scheduled Castes (SC)
(ii) Scheduled Tribe (ST)
(iii) General Merit (GM)
(iv) Backward Communities (BCM)
(v) Backward Special Group (BSG)
Now according to the actual selections made, one candidate belonging to General
Merit has been selected, namely, the 7th respondent. But in respect of other four posts
two candidates belonging to backward caste and two candidates belonging to
backward community have been selected obviously following the Government Order
dated 6.10.1981. If the roster prescribed was followed subjectwise, in view of
paragraph 6 of the Government order, dated 4th March, 1977, the 5th vacancy
earmarked for backward special group ought to have been made available for general
merit as no candidate belonging to backward special group in the subject of Physics
was available. In that event as the petitioner was at Sl.No.2, according to merit, she
was entitled to be selected as against one of the posts of Lecturer in Physics. The
petitioner has been denied equality of opportunity in the matter of selection for
appointment to the post of Lecturer only on account of the giving effect to the
reservation of posts on the basis of total number of posts advertised though it
comprised all posts of Lecturers in different subjects and of specified numbers.
Therefore the petitioner is entitled to a direction to the Commission for re-doing the
list by giving effect to the reservation of posts subjectwise and by observing the roster
prescribed in Appendix-II to the Government Order.
17. At this stage, it is also necessary to observe that if the reservation of posts
is given effect to on subjectwise basis while making selection for the posts of
Lecturers, the Commission would have to follow the procedure prescribed in
Appendix-III as that would be attracted, as, in that event all the candidates would be
eligible for all the posts advertised and the anomaly that had been created and which
was considered in the cases of Anne Gowda and Muni Reddy would no long exist.
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18. The only question which remains for consideration is whether there should
be a direction to the effect that after re-doing the list if it is found that some of the
candidates who are selected are not selected they should be displaced from
appointment. As seen from the history of the case commencing from the case of Smt.
Syda Husna Banu, the question whether the reservation should be effected in
subjectwise basis or on the basis of total number of posts was being debated before
this Court. It is seen that the reservation of posts on the basis of total number of posts
was being resorted to prior to the introduction of roster, for, if the same was not done
it was quite likely that the reservation itself would have been defeated if small number
of posts of Lecturers in different subjects were advertised on each occasion.
Therefore, it was considered inevitable, even at the cost of some injustice to
candidates belonging to general merit in some other subjects, that the reservation
should be given effect to on the basis of total number of posts. But after the roster is
prescribed as pointed out by the Division Bench in Writ Appeal No.63 of 1974, the
injustice that was likely to be caused by reserving the posts on subjectwise basis had
been averted. In this situation, it appears to me that it is not expedient to direct the
cancellation of the appointment of candidates already selected but it would meet the
ends of justice to direct the Commission and the Government to adjust the candidates
who are not selected, consequent on the re-doing of the select list, as against vacancies
arising after the impugned selection. Similarly, it appears to me that it is not expedient
to reopen the matter of reservations of posts made prior to the impugned selection and
that a direction to commence the roster from the impugned selections is sufficient.
19. In the result, I make the following order:
(i) Rule made absolute.
(ii) A writ in the nature of mandamus shall issue to the Commission to re-do
the selection made and published in notification dated 18th June 1983 (Annexure-C)
for the posts of Lecturers by giving effect to the reservation of posts on subjectwise
basis adhering to the roster prescribed in Appendix-II to the Government Order dated
4th March 77 as substituted by the Government Order dated 26th September 1979.
(iii) For the purpose of adhering to the roster, the Commission is directed to
take the present selection as the starting point.
(iv) The Commission shall publish a fresh list of candidates entitled to be
selected for the posts of Lecturers in each subject separately.
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(v) If candidates who have not been selected in the impugned notification are
included in the list of selected candidates prepared pursuant to the writ issued in this
Writ Petition, the appointing authority shall proceed to give appointment forthwith to
the candidates who are so selected.
(vi) If some of the candidates selected in the impugned notification are not
selected, their names shall be shown at the end of the list separately and the categories
to which they are entitled to be selected according to the roster shall be specified and
they shall be adjusted against the vacancies arising on and after the date of the
impugned notification.
(vii) No costs.
***
312
Writ Petition No.29268 of 1995 D.D. 10.7.1997
The Hon'ble Mr. Justice V.P.Mohan Kumar
G.Harish Babu - Petitioner Vs. State of Karnataka & Others – Respondents
Recruitment to the post of Assistant Director of Industries & Commerce - 4th respondent who claimed reservation under Group-A as belonging to Talwara community was selected. Petitioner who also claimed reservation under Group-A as belonging to Golla community disputed the claim of 4th respondent for reservation under Group-A by contending that he belongs to Kabbaliga community and not Talawara community – The Caste Verification Committee held that 4th respondent belongs to Kabbaliga community which does not come under Group-A. Consequently, the petitioner was included in the Select list. The 4th respondent filed Appeal before the Divisional Commissioner – Respondent No.2 who declared that he belongs to Talawara community without hearing the petitioner – The result being the petitioner was dropped from the select list and 4th respondent was included. The petitioner approached KAT which dismissed his application. In this Writ petition filed by the petitioner, the High Court has held that as the dispute is between the petitioner and respondent No.4 as to the claim of reservation respondent No.2 erred in disposing of the Appeal without hearing the petitioner. The High Court has directed respondent No.2 to re-hear the matter and to pass fresh order after hearing the petitioner.
ORDER
There is a dispute between the petitioner on the one hand and the 4th
respondent on the other. There was selection to the post of Assistant Directors in the
Department of Industries and Commerce and in response to the notification issued by
the Karnataka Public Service Commission, both the petitioner as well as the 4th
respondent applied. The petitioner claimed that he belongs to Golla community
coming under Group A. The 4th respondent also claimed that he belongs to Talwara
community also coming under Group-A. The petitioner disputed the claim of the 4th
respondent that he belongs to Talawara community. According to the petitioner, the 4th
respondent belongs to Kabaliga community and that he does not come under Group A
category. On the dispute raised by the petitioner, the matter was referred to the Caste
Verification Committee. The Caste Verification Committee as per Annexure-A order,
declared that the 4th respondent belongs to Kabbaliga community and, therefore, he
does not comes under Group-A. On the dispute raised by the petitioner, the matter
was referred to the Caste Verification Committee. The Caste Verification Committee
as per Annexure-A order, declared that the 4th respondent belongs to Kabbaliga
community and, therefore, ye does not comes under Group-A. As a consequence, as
the petitioner was the only other candidate in Group-A, his name was included in the
select list of candidates selected for appointment as Assistant Directors. Against the
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said order classifying him as a Kabbaliga, the 4th respondent filed an appeal before the
Divisional Commissioner, Gulbarga, the 2nd respondent herein. The appeal was
decided without hearing the petitioner. It was declared that he is a Talawar and he
belongs to that community. The declaration given by the 2nd respondent had an
indirect effect on the selection. The selection to the post of Assistant Directors,
referred to above, was extended to 4th respondent since he is declared to be a Talawara
community. This resulted in the petitioner being dropped from the list of selected
candidates and in his place the 4th respondent was included. The petitioner contends
that he belongs to Group-A and if it is established that the 4th respondent is a
Kabbaliga, automatically he will be entitled to be in the list and that the claim of the
4th respondent cannot be given any consideration. Therefore, the declaration earned by
the 4th respondent without hearing the petitioner is illegal and cannot be sustained.
2. Mr. Robert D'Souza, learned counsel for the 4th respondent, raises a
preliminary objection and submits that this is a matter touching the conditions of
service of a State employee and that this Court has no jurisdiction to adjudicate the
issue. According to him, the proper procedure would be to approach the Karnataka
Administrative Tribunal in this behalf and raise the challenge. Mr. Robert D'Souza
submitted that as a matter of fact the petitioner had approached the Karnataka
Administrative Tribunal earlier challenging the deletion of his name from the list of
candidates selected by the Public Service Commission and that the same was rejected.
3. As stated, originally the 4th respondent's name was included in the selection
list. When a dispute being raised regarding the caste of the 4th respondent, a decision
was rendered holding that the 4th respondent is a Kabbaliga and that he does not come
within Group-A. Thereupon the 4th respondent's name was removed from the list and
in his place the petitioner's name was entered. Against the said order, the 4th
respondent filed an appeal before the 2nd respondent. The Appellate Authority, after
considering the claim of the 4th respondent, held that he belongs to Talawara
community and not a Kabbaliga and therefore, he comes under Group-A.'' Thereupon
the petitioner's name which was included in the list, was deleted. At that stage, the
petitioner approached the Karnataka Administrative Tribunal challenging the decision.
The Tribunal took the view that mere inclusion of the name in the select list does not
confer any right for appointment and as such the deletion of the name from the list
does no furnish a cause of action to approach the Tribunal. Accordingly, it dismissed
the appeal.
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4. As can be seen from what is stated above, there was no adjudication of the
right of the petitioner vis-à-vis the 4th respondent as this stage. There was no scope for
adjudication of that right of the 4th respondent. All that was raised for consideration
was whether the exclusion of the name of the petitioner from the select list was
justified for not. As it was opined that mere inclusion of the name did not confer any
title to the post and as it did not culminate in any appointment, it was held that the
dispute did not come within the ambit of the Tribunal. The appeal was accordingly
dismissed. In other words, the view of the Tribunal was, it would have had
jurisdiction to entertain the appeal if an appointment has been made, and inclusion or
deletion of the name from the select list merely on the adjudication of caste is not a
dispute that can be gone into by the Tribunal. That is, an adjudication of a dispute
regarding caste is not a matter that can be gone into by the Tribunal. This means, by
an interparties order, the Tribunal has taken the view that it cannot adjudicate that
issue. If so, the respondents cannot contend that the Court has no jurisdiction to
examine the issue now. That being not an adjudication on the merits of the claim, this
Court has jurisdiction to examine the question now raised by the petitioner.
5. What is now raised in the present proceedings is that classification of the 4th
respondent as a Talawara is incorrect and unsustainable. That was impliedly held to
be not a question that can be gone into or examined by the Administrative Tribunal.
No doubt a caste of the person may also be described as a condition of service, but the
adjudication made by the Tribunal interparties, held that it is not to be gone into. If
the Tribunal had jurisdiction to decide that issue, than the appeal would not have been
held to be premature. By the dismissal of the appeal by the Tribunal as premature,
there is an implied finding that the question raised regarding the caste of the 4th
respondent cannot be gone into by the Tribunal. Now, besides that the adjudication
made by the 2nd respondent as regards the caste of the 4th respondent cannot be said to
be an adjudication with respect to the conditions of service for selection. The fact that
the 4th respondent is a Talwara does not necessarily mean that he will be included in
the select list. It only declares the status of the community. That would not be a
decision coming within the jurisdiction of the Administrative Tribunal for
adjudication.
6. The dispute is between the petitioner on the one hand and the 4th respondent on
the other. The petitioner's case was that the 4th respondent is a Kabbaliga and not a
Talwara. This contention was found favour with the Caste Verification Committee as
well. On the basis of the dispute raised by the petitioner an adjudication was entered.
Against this adjudication an appeal was filed by the 4th respondent but the appeal was
315
disposed of without hearing the petitioner. The petitioner is the real contestant who
challenged the claim of the 4th respondent. If so, he is entitled to be heard in the
matter. A decision could not have been taken without hearing him. In the
circumstances, the disposal of the appeal without hearing the petitioner is clearly
unsustainable in law. I, therefore, quash Annexure-A order and direct the 2nd
respondent to re-hear the matter and pass a fresh order after hearing the petitioner
within a period of four weeks from today. A final decision as regards the selection of
the 4th respondent by the Karnataka Public Service Commission may be taken by them
only after adjudication of the matter by the 2nd respondent. With the above direction,
the writ petition is disposed of.
***
316
ILR 1999 KAR 1814
W.P.No.13157/1998 dated 11th November 1998
Basavaraj Nagoor Vs. State of Karnataka & Another
Rule 3B of the Karnataka Civil Services (General Recruitment) Rules 1977 which provided for giving weightage of 10% marks to the rural candidates in giving public employment has been struck down by the High Court as unconstitutional. Cases referred: 1. AIR 1975 SC 563 – State of Uttar Pradesh V. Pradip Tandon 2. AIR 1982 SC 1301 – State of Maharashtra vs Raj Kumar 3. (1984) 4 SCC 296 – Suneel Jatley vs State of Haryana 4. 1995 Supp (2) SCC 235 – V.N.Sunanda Reddy vs State of Andhra Pradesh Writ Appeal No.5807/1999 preferred by the State Government against the
above decision has been dismissed by the Division Bench as per judgment dated
26.11.99 which has been reported in ILR 2000 Kar. 870 State of Karnataka & Others
Vs. Basavaraj Nagoor & Others.
SLP (Civil) Nos.2065-2084/2000 preferred by the State Government against
the judgment of the High Court has been dismissed by the Supreme Court as per order
dated: 14.2.2000.
ORDER
G.C.Bharuka, J.
The petitioner has appeared at the examination held on 30-8-1998 by
Karnataka Public Service Commission for the Karnataka Civil Service Group ‘A’/ ‘B’
post, the result whereof is still awaited. He has questioned the validity of Rule 38 read
with Rule 2 (1) (mm) of the Karnataka Civil Services (General Recruitment) Rules,
1977 (in short to the Rural candidates in giving public employment under the State’s
Civil Services.
2. Pursuant to the powers conferred on the State Government under Section 3 of
the Karnataka State Civil Services Act, 1978 (Karnataka Act 14/1990), the State
Government has made the Karnataka Civil Service (General Recruitment) (Forty-third
amendment) Rules 1993, whereby it amended the Rules by inserting clause (mm) in
sub-Rule (1) of Rule 2 defining ‘ Rural candidate’ and an independent Rule 3B
providing for “weightage of marks to rural candidates’ in order to give preference to
them in public employment.
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3. Subsequently, Clause (mm) in sub-rule (1) of Rule 2 and Rule 3B of the Rules
were subjected to various amendments by the Karnataka Civil Service (General
Recruitment) (Forty-third amendment) Rules 1996, Karnataka Civil Service (General
Recruitment) (Forty-third amendment) Rules 1997, Karnataka Civil Service (General
Recruitment) (Forty-third amendment) Rules, 1997,under notification dated 15-3-
1996, 27-4-1997 and 6-12-1997 respectively. The amended clause (mm) of sub-rule
(1) of Rule 2 and Rule 3B of the Rules read thus:-
2(1)(mm).- ‘Rural candidate’ means a person who has studied in the State of Karnataka.
(i) from first standard to tenth standard where the qualifying examination prescribed for a post of SSLC or higher; or
(ii) from first standard to qualifying examination, where the qualifying examination prescribed for a post is lower than SSLC.
in a school situated in an area/town other than the areas/towns specified in the Schedule. Provided that where a student who has been admitted directly to any standard other than the first standard in accordance with the provisions of the Compulsory Primary Education Act, 1961, and has studied upto qualifying examination or upto the 10th standard as the case may be in a school situated in an area or towns other than the areas or towns specified in the schedule shall also be considered as Rural candidates under this rule.
3B Weightage of marks to rural candidates:-
(1) Not-withstanding anything contained in these rules or in the Karnataka Civil Service (Direct Recruitment by Selection) Rules, 1973 or in any other rules made or deemed to have been made under the Karnataka Civil Service Act, 1978 (Karnataka Act No. 14 of 1990) in all direct recruitment to (any of the posts) in the State Civil Services, in respect of a rural candidate, a weightage of:-
(i) Ten percent shall be added to the percentage of marks secured in the:- (a) qualifying examination where the selection is based
upon the marks secured in the qualifying examination; (b) qualifying examination where the selection is based
upon the marks secured in the qualifying examination and interview;
(c) competitive examination or in the competitive examinations and interview/viva-voce, as the case may be, where the selection is based upon marks secured in the Competitive examination or in the Competitive examination and interview/viva-voce.”
(ii) Ten percent of the marks secured in the interview shall be added
to the marks secured in the interview where the selection is made on the basis of the marks secured in the interview.
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Provided that no weightage shall be allowed to a rural candidate for whom a rural weightage has already been allowed in accordance with the rules of recruitment specially made in respect of any service or post.’’
4. Learned Counsel appearing for the petitioner has questioned the constitutional
validity of the impugned Rules providing for giving of extra 10 % marks to the rural
candidate in order to give them weightage over the otherwise better merited candidates
for giving preference in public employments being violative of the fundamental rights
of equal opportunities enshrined under Article 14, 15 and 16 of the Constitution of
India since according to him no classification based on residence in a particular area
for a given period can form a permissible class for the purpose of any of the equality
clauses in the Constitution. In support of his submission, he has relied on the decisions
of the Supreme Court in the cases of STATE OF UTTAR PRADESH, vs PRADIP
TANDON, STATE OF MAHARASHTARA vs RAJ KUMAR and SUNEEL
JATLEY vs STATE OF HARYANA.
5. Learned Advocate General appearing for the State of Karnataka has submitted
that the candidates hailing from rural areas surely form a well defined class in
themselves for the purposes of Article 14, 15 and 16 of the Constitution of India and
the Sate is justified in giving preference to them in public employments by adding 10
% to the marks scored by them in the qualifying and entrance test or the interviews as
a ‘rural weightage’ so that they may have proper representation in such employments.
He has placed reliance on the statement made in the counter affidavit by the Under
Secretary to the State Government wherein he has stated that the impugned rules have
been made by taking into consideration the environment and the educational facilities
available in rural areas as compared to those in urban areas and further to enable the
rural candidates to compete with the candidates coming from urban areas for the
purpose of direct recruitments to the posts in civil services of the State.
6. The original government file pertaining to making of the impugned Rules, the
Cabinet decision and opinion of the law department and Cabinet Secretary have also
been made available to me for my perusal. On perusal thereof, I find it advisable to
quote one paragraph from the Cabinet note dt. 21-1-1997 prepared by the Secretary to
the Government, Department of Personnel and Administrative Reforms, which is quite
eloquent on the issue. It is to the effect.-
“ As already opined by the Law Department, providing rural weightage may not stand the test of Constitutional validity and legal scrutiny. Further, without any statistical data or material, it may be difficult to sustain such a provision when questioned in the courts. Frequent enhancement may in itself give room for this issue being
319
challenged. Thus, it may not be possible to defend the initial action taken by the Government in providing rural weightage but also the frequent enhancement could be the cause for setting aside the whole concept of rural weightage.’’
7. Neither, in the counter affidavit nor independently, any material has been
placed before this Court to show that the entire population covered by the definition
“Rural Candidate” constitutes socially and economically a backward class of citizen
for the purposes of Article 16 (4) or they are entitled for any weightage, relaxations,
concessions or privileges in public appointments en mass forming a backward class of
citizen which, in the opinion of the State, is not adequately represented in the services
of the State. As a matter of fact, as extracted from the Government note, what to talk
of at the time of taking initial decision in the year 1994 when the original impugned
rules were incorporated, even till this day, no dates of whatsoever worth, are available
on record either to justify the backwardness of the rural candidates or that persons
coming from the rural areas do not have adequately representation in services under
the State.
8. To my mind, the questions raised at the Bar are no more reintegrate since the
law on these questions has already been settled by the Supreme Court long back but
unfortunately, still the political executives in order to appease/lure the voters and
enrich their vote banks, despite having the full knowledge about the declaration of law
by the Apex Court, have ventured to incorporate a constitutionally invalid rule like the
impugned one depriving many merited candidates of their fundamental rights to
employment and livelihood. I feel that a Government, acting under the solemn oath to
preserve the supremacy of the Indian constitution and rule of law, should have acted
with little more care and restraint instead of being swayed away with unconstitutional
populistic measures.
9. In Pradeep Tandon’s case (supra), the question which had fallen for
consideration before their Lordship of the Supreme Court was as to whether the
instructions framed by the State in making reservation in favour of the candidates from
Rural Areas. Hill Areas and Uttrakhand were constitutionally valid? In this case, on
behalf of the State Government, it was contended by the learned Attorney General that
the people of rural areas are normally socially and economically backward and so they
constitute a well defined class within the meaning of Article 15 (4) of the Constitution
of India. It was also contended that because of their common trades, occupation and
residence in rural areas they are recognized as a separate class in the Indian Society
320
and are commonly known as “ Rural People”. However, the Supreme Court rejected
the said plea by holding that (pr. 25, 26):-
“25. Some people in the rural areas may be educationally backward, some may be socially backward, there may be a few who are both socially and educationally backward, but it cannot be said that all citizens residing in rural areas socially and educationally backward. 26. 80 percent of the population in the State of Uttar Pradesh in rural areas cannot be said to be a homogeneous class by itself. They are not of the same kind. Their occupation is different. The standards are different. Their lives are different. Population cannot be a class by itself. Rural element does not make it a class. To suggest that the rural areas are socially and educationally backward is to have reservation for the majority of the State.”
(emphasis supplied)
10. Subsequently, in Raj Kumar’s (supra), the recruitments rules, like the one under
challenge, were under judicial scrutiny before the Supreme Court. In this case also,
the State Government had made provision for giving 10 % rural weightage to the
candidates having passed SSC from rural areas. Their lordships have held that
“giving of weightage to the rural candidates would virtually convert the merit into
demerit and demerit into merit and would be per se violative of Article 14 of the
Constitution as being impermissible classification. The rule of weightage as applied
in this case is manifestly unreasonable and wholly arbitrary and cannot be sustained.”
In this case, their Lordships have found themselves in complete agreement with the
opinion expressed by the High Court which according to them had laid down the
correct law and was thus fully approved. The High Court observed that:-
“ On the contrary, it places a rural candidate in an advantageous position by a sheer accident of his passing the SSC Examination from rural area.” “…..Here we are faced with a problem that a candidate by sheer chance of his appearing and passing the examination from rural area gets an advantage over all others by arbitrary addition of ten per cent of marks which, as we have indicated above, has no reasonable nexus or connection with the object of getting the best candidates suitably adapted to rural life.”
11. Similar question regarding validity of a rule providing for giving weightage to
the rural candidates in professional colleges had arisen in Suneel Jatley’s case (supra),
which was also declared to be constitutionally impermissible. In this case, the Apex
Court apart from relying on its earlier judgment in the cases of Pradeep Tandon
(supra) with approval have given some additional reasonings for taking the said view.
These reasons aptly and squarely apply to the present case in order to counter the
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claim of the State. The Supreme Court in paras 11 and 12 of the judgment has held
that:-
“11. Assuming that the decision in Pradip Tandon case does not conclude the point as herein raised, the differentia on which the classification is founded appears to us arbitrary and irrational. How arbitrary and irrational it is, can be demonstrably established. In order to take advantage of the reservation students from nearby urban areas can join common rural school on the periphery of urban agglomeration. And all rural schools without an exception cannot be condemned as ill-housed, ill-stated and ill-equipped. Agriculture in Haryana has been a very profitable pursuit and standard of life of average farmer in rural area has gone up compared to middle class and industrial workers and the slum dwellers whose children will attend as a necessity urban schools. And yet the better placed will enjoy reservation. Further the basis of classification based on education upto eighth standard is wholly irrational. And it has no nexus to the object sought to be achieved, of providing extra facility to students coming from rural schools to enter medical college. 12. What was the object sought to be achieved by the classification? It was said that students taking education in common rural schools from first to eight standard are at a comparative disadvantage to those taking education in urban schools in the same standards. The comparison in our opinion is fallacious for the reason that the same Government prescribes standards of education, equipment, grants and facilities including the qualification of the staff for being employed in urban and rural schools imparting instructions from first to eight standard.”
(emphasis supplied)
12. What has been said by the Supreme Court in respect of State of Haryana is no
less true in respect of the State of Karnataka as well. The “Status Report on
Elementary Education” published by the Education Department of the Government of
Karnataka in September 1996 reveals that out of Rs.12, 33, 915.00 lakhs representing
the total State budget for the year 1996-97, Rs. 1,82,660.50 lakhs, which is 14.80 %
had been earmarked for being spent on education. Out of the said amount,
Rs.99,454.05 lakhs and Rs. 58,084.15 lakhs was meant for primary and secondary
education respectively. The report further states that all steps have been taken to open
primary schools in area having a population of more than 300 inhabitants and more
than 95 % of the children have a primary school within a radius of 1 K.M. from their
place of residence. According to the report, there are in total 42,479 lower and higher
primary schools in the State providing for free and compulsory education for the
children in the age group of 6-14 years.
13. It is also of importance to note that the imparting of education right from first
standard is being regulated in this State under various statutory provisions. Now, a
consolidated Act called the Karnataka Education Act, 1983 is in force whereunder
rules have been framed making those applicable uniformly to all the schools situated
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in the Sate of Karnataka irrespective of the fact whether the areas are rural or urban.
These rules are Karnataka Private Education (Discipline and Control) Rules, 1978
providing for qualification of teachers, their mode of recruitment and service
conditions. Even for standard-VII and below, the Government has framed the
statutory rules known as District Level Seventh Standard Public Examination Rules,
1997 providing for uniform examinations. The other Rules in the area are the Grant-
in –Aid code, the Karnataka Educational Institutions (Classification, Regulation and
Prescription of Curricula etc.,) Rules, 1995 and the Karnataka Educational Institutions
(Classification and Registration) Rules, 1997.
14. For the aforesaid reasons and keeping in view the judgment of the Supreme
Court in the above referred case of Sunnel Jatley, it is difficult to accept that the
students who had read in the rural schools have in any manner suffered any
disadvantage in the matter of acquiring school level education. But, even otherwise,
as held by the Supreme Court, such a classification per se is constitutionally
impermissible.
15. The judgment in the case of State of Rajasthan Vs Raj kumar has been followed
with approval by the Supreme Court in its later judgment in the case of
V.N.SUNANDA REDDY vs STATE OF ANDHRA PRADESH. In this case, the
Apex Court has held the rule framed by the State Government providing for addition
of 5 % of the total aggregate marks to the assessment of Telugu medium candidates in
recruitment to public posts, to be violative of Articles 14 and 16 of the Constitution.
The Apex Court has held that (at p. 245/a).
“This would weed out best available candidates from the open market and would impair the efficiency of administration. It deserves to be pointed out that even while making reservations for members of the Scheduled Castes and the Scheduled Tribes as permitted by Article 16 (4) of the Constitution, efficiency in administration is required to be borne in mind, as enjoined by Article 335; and it is principally this requirement which led the nine-judge Bench of this Court in the Mandal Commission case to hold that reservation cannot exceed 50 %. This aspect shall have to be borne in mind, a fortiori, here as the weightage to be given has no constitutional sanction.” (emphasis supplied) 16. For the aforesaid reasons, the impugned Rule 3B of the Karnataka Civil Services (General Recruitment) Rules, 1977 providing for ‘weightage of marks to rural candidates’ is declared as void in terms of Clause (2) of Article 13 of the Constitution of India which prohibits the State from making any law taking away or abridging the rights conferred under part III of the Constitution of India which including the right of equality enshrined in Articles 14, 15 and 16 of thereof.
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17. I expect that the law declared by the Supreme Court will be duly honoured by
the Sate Government by fore bearing from granting rural weightage in respect of
admission to educational institutions as well.
18. Any how, it is clarified that as held in Sunanda Reddy’s case (supra),
notwithstanding the above declaration, the appointments of persons already made on
the basis of ‘rural weightage’ and who are working on their posts will not be disturbed
and their appointment will not be adversely affected because of the present judgment.
19. The writ petition is accordingly allowed. Anyhow, there will be no order as to
costs.
***
324
Supreme Court of India Civil Original Jurisdiction
Writ Petition No.463 of 2002 Vithal and Others V/s State of Karnataka
ORDER
These writ petitions have been filed by the petitioners who have been denied
their claims for reliefs they were entitled to on the basis of a decision of this Court in
the matter of Sreedhar S v/s State of Karnataka and in Civil Appeal No.7105 of 2001
and other connected appeals. The decision of this court was relied upon by the writ
petitioners, was in respect of an order passed by the High Court of Karnataka setting
aside an interim order which had been passed by the High Court during the pendency
of the appeals before it.
The decision of the Karnataka High Court arose out of Writ Petition s which
had been filed challenging Rule 3(B) of the Karnataka Civil Services (General
Recruitment) Rules, 1976 by which weightage was granted in favour of a rural
candidate. The Writ Petitions were allowed and the Rule was struck down as being
unconstitutional by the learned single Judge. The judgment of the learned Single Judge
was delivered on 11.11.96. While allowing the Writ Petition s the Single Judge
directed that those appointments which had already been made in accordance with the
impugned Rule would not be disturbed.
The State Government appealed from the decision of the learned Single Judge.
During the pendency of the appeal, the Division Bench passed an interim order dated
4.12.1998 staying the operation of the order of the learned Single Judge subject to the
following (1) selections/appointments made thereafter would be subject to the decision
in the appeal, (2) the appointing authority before giving the order of appointment to a
candidate having rural weightage was required to obtain an undertaking from the
candidate that the appointment given would be subject to the decision in these
proceedings pending before the High Court and (3) that the candidate would have no
right to the post in the event the order of the learned Single Judge was upheld.
During the pendency of the appeal, the appointments were made in compliance
with the interim order of the appellate court. All appointees gave undertakings as
specified in the interim order and were perfectly aware that their appointments were
subject to the decision in the pending appeal. The appeal was ultimately dismissed by
the Division Bench of the High Court on 26.11.99. However, while affirming the
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decision of the learned Single Judge that Rule 3(B) of the Karnataka Civil Services
(General Recruitment) Rules 1976 was ultra vires, the Division Bench directed that
those persons who had been appointed during the pendency of the appeal till the date
of the Division Bench's decision namely 26.11.99, on the basis of their rural
weightage, would continue in service.
Some of the candidates who had been superseded by the appointees with rural
weightage, approached this Court challenging the confirmation of the order passed by
the Division Bench insofar as it allowed the appointees with rural weightage whose
appointments were subject to the outcome of the appeal, to continue in service. This
Court disposed of the appeals including the appeal being ca.No.7105 of 2001 on
11.10.01 holding that the directions of the Division Bench of the High Court allowing
the appointees with rural weightage to continue in service despite their having been
appointed only pursuant to the interim order passed by the Division Bench were
unsustainable in law. Those directions of the Division Bench of the High Court in
relation to appointments made during the pendency of the appeal and also the
conditional selections made on the basis of rural weightage were accordingly set aside.
This Court, however, made it clear that if any of these appointees are otherwise
entitled to be appointed even after excluding the weightage given under Rule 3(B)
judgment will not operate to debar them from being appointed. In view of this
decision, WP (C) No.365/1999 was dismissed as withdrawn.
On 5th November 2001, the High Court of Karnataka after having considered
this court's decision dated 11.10.01 issued a Notification showing a list of Civil Judges
(Junior Division) who had been appointed after review the benefit of rural weightage
and who after rural weightage marks were excluded did not qualify for selection and
appointment as Civil Judges (Junior Division). The Notification also stated that these
Civil Judges (Junior Division) whose names were so listed were relieved from service
and they were directed to hand over the charge of their present post to the officers
mentioned against their names. In the list of officers given in the Notification dated
5.11.01 (referred to hereafter as the 'first Notification', there are 26 officers mentioned.
Several interlocutory applications and review applications were filed by the
persons who has been appointed pursuant to the interim order passed by the Division
Bench of the High Court as well as by the State Government. The interlocutory
applications as well as the review applications were dismissed by this Court on
26.11.01. After recording that the Court was not inclined to entertain any of the
applications so filed, the Court specifically directed that:
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The review petitions as well as I.A.s are dismissed. If any person no being a party to the same is aggrieved by any order of this Government pursuant to our Judgement it would be fresh cause of action which he can assail in an appropriate forum. (In review petitions) Needless to mention judgment of this Court bind the parties in the proceedings"
This order was not intended to reopen the issue which has been decided by this
Court on 11.10.01. The "right" of the review petitioners was to approach the Court
after the Government issued an order pursuant to the decision dated 11.10.01 if the
review petitioners were otherwise aggrieved by the same. Naturally, no grievance
could be ventilated on the basis of the issues which had been concluded on 11.10.01.
This rule granting rural weightage has been struck down and this Court had come to
the conclusion that only these appointments which were made up to the date of the
learned single Judge's decision would be continued and no further appointments on the
basis of the Rule 3(B) would be considered to have been validly made.
However, appearing to treat the entire issue at large again the High Court
issued a Notification on 6.2.2002 (referred to hereafter as 'the second Notification') by
which the High Court set aside the first Notification observing, that the officers who
had been removed by the first Notification were reinstated by virtue of this Court's
clarification dated 26.11.02. Therefore, the first Notification which had been issued
pursuant to this Court's decision dated 11.10.01 on the substantive appeal was
withdrawn on the basis of the "clarification" dated 26.11.01.
We have already made it clear that the High Court's reading of the clarification
was entirely incorrect. Indeed, it is not in dispute that each of he persons who have
got the benefit of the second Notification were appointed during the pendency of the
appeal before the High Court and all of them had given undertakings in terms of the
interim order passed by the High Court. They, therefore, knew that their appointments
were precarious and subject to the outcome of the appeal. The decision in the appeal
having gone against them, they are bound by the undertaking given to Court and
cannot now contend otherwise.
The Writ Petitioners are those who were successful in the examinations which
were held for the post of Civil Judges (Junior Division) in 1998. In the merit list, the
four Writ Petitioners have been shown as against serial Nos.56, 65, 77 and 81.
327
According to the Writ Petitioners the persons whose names were listed in the
first and second Notifications had not right to continue in service as they wee
disqualified from being appointed as Civil Judges by virtue of the order of this Court
dated 11.10.01. Therefore, the Writ Petitioners were entitled to be considered for
appointment.
The learned counsel appearing on behalf of the High Court has stated that the
High Court has acted bonafide on a mistaken interpretation of the order dated 26.11.01
passed by this Court on the review petitions. It is stated that in any event this Court
may consider continuing "those appointees who were appointed in the interim period
during the pendency of the appeal before the High Court" as they had already put in
several years of service and there is a dearth of Judicial Officers in the State. As far as
the State Government is concerned, it is submitted that they had also proceeded on the
basis of a misinterpretation of the order dated 26.1.01. However, the submission on
behalf of the State Government is that the order dated 26.11.01 should be recalled and
the review applications be determined on merits. As far as the 26 interim appointees
are concerned they have submitted that they should be allowed to continue in service
over a period of time; that all of them were practicing as advocates when they were
selected, and that if they are now deprived of their position they would lose all, neither
having the benefit of seniority in profession nor the benefit of service in the Judicial
service. It is further submitted that although some of them had taken the examinations
pursuant to the advertisement issued subsequent to the decision of this Court dated
11.10.01, none of them had appeared in the interview by virtue of this Court's order
dated 26.11.01 because the conditions for appearing at the interview as that they
would have to resign from service and thereafter be appointed in which even they
would have lost about three years of service. It is further submitted that it would be
inequitable to call upon them to take the examination fresh at this stage apart from the
fact that many of them have crossed the age limit. It is, therefore, submitted that they
should be continued in service and even if they are asked to take interviews in respect
of the examinations held in 2002, they should be given the benefit of the years of
service they have put in and granted seniority on that basis. According to these
respondents, in all other services the different departments had not taken steps
pursuant to the decision of this Court, namely, to weed out those who have been
treated as qualified only on the basis of rural weightage and who had been appointed
after the decision of the learned Single Judge. It is submitted that, therefore the
decision of this Court would operate in a discriminatory manner if it were enforced
only with regard to the Judicial service.
328
We are unable to accede to the submission of the State Government, the High
Court and the 'interim appointees'. The decision of this Court rendered on 11.10.01
cannot be rendered nugatory by allowing the very persons in respect of whose
appointment this Court has held that the Division Bench should not have allowed them
to continue in service. If the subsequent clarification has been misunderstood by the
High Court and the State, we can only say that it was unfortunate and surprising as it
could not reasonably be accepted that on a review application which was being
dismissed, the Court had in fact allowed the review and redecided the matter in a
diametrically opposite manner. Where the rule has been declared to be
unconstitutional and consequences must apply to all the services, the Rule could not
be taken to be good in part and bad in part. Therefore, only to the extent that
appointments had been specifically and expressly protected by this Court eh striking
down of the Rule would operate against all persons who were otherwise not so
protected. The question of continuing the "interim appointees" in service, therefore,
does not arise. The second Notification is therefore quashed.
However, as far as the submission of the private respondents and other
"interim appointees" is concerned, on equitable considerations, we allow them to take
the interview in respect of the examination held in 2002. It is made clear that this
Court is acting only on the basis of the statement made by these respondents that they
had qualified in the written examination and were entitled to be called for interviews.
We have not decided that issue as a finding of fact. If these pre-conditions are
prevailing, namely, that the written examinations have been taken in 2002 and that
these respondents have passed the written examination and are entitled to be called for
interview, they shall be called for interview by the concerned authority within a period
of four weeks from date. If any of these respondents are successful as a result of this,
they shall be treated as having been appointed from the date of the issuance of their
fresh appointment letter. Their pas service will not be taken into consideration for the
purpose of granting them seniority in any fashion whatsoever. Having regard to the
passage of time and in the circumstances of the case, we also direct that the competent
authority will allow those respondents who have crossed the age limit to appear at the
interview for the aforesaid purpose. If any of these respondents and other "interim
appointees" had not sat in the examination during any particular year, it is made clear
that they can also sit in the next examination to be held even if they have crossed the
age limit.
As far as the other services are concerned, if the State had not complied with
the Court's order dated 11.10.01, they have done so at their peril. If indeed what the
329
Writ Petitioners in the Writ Petitions filed in respect of the Police Service have said is
correct, the State Government is directed to take immediate action to rectify this
situation and comply with this Court's direction as contained in the order dated
11.10.01 within a period of eight weeks from date. This only leaves the relief that can
be granted to the Writ Petitioners. As far as they are concerned, if their case for
appointment had not been considered only because otherwise unqualified candidates
had been appointed by virtue of rule 3(B) and if as a result of the decision of this
Court on 11.10.01 any vacancies have been created in the year in which these Writ
Petitioners had successfully qualified and been named in the merit list, they shall
against the vacancies so created, be entitled to be appointed in their turn and in
accordance with the merit list. This exercise shall also be carried out within a period
of eight weeks from date. However, we make it clear that if any of the Writ
Petitioners is so appointed his/her appointment will be taken from the date of the
issuance of the order of the appointment.
The Writ Petitions stand disposed of in the aforesaid terms.
(Ruma Pal)
(B.N.Srikrishna)
***
330
W.P.Nos.34026-34037/1998 & connected cases D.D. 28.1.1999
Hon'ble Mr. Justice Ashok Bhan Hon'ble Mr. Justice K.R.Prasada Rao
H.B.Shiva Kumar & Others – Petitioners Vs. The State of Karnataka & Ors. – Respondents
Competitive Examination held by the Commission for recruitment to the post of F.D.A. in pursuance of the notification dated 3.10.96. As there was an error in randomization of series in the Computer programming, the Provisional select list/Marks list published by the Commission was found to be defective. Therefore the said select list was withdrawn. The petitioners whose names figured in the said list approached KAT which dismissed the applications of the petitioners. Therefore, the petitioners filed the above writ petitions. In view of the Expert report which confirmed the finding of the Commission that the select list was defective because of the error in randomization of series in computer programming, dismissed the writ petitions.
O R D E R
The petitioners in all these writ petitions appeared for the competitive
examination held by the Karnataka Public Service Commission (for short the KPSC)
after applying for the post of First Division Assistant in pursuance of the notification
bearing No.E(2)38/PSC/96-97 dated 03.10.1996 vide Annexure-A and after evaluation
of the answer scripts a provisional select list was published by KPSC on 02.05.1998
showing the names of all these petitioners as the candidates selected, a copy of which
is Annexure-B. While publishing the said provisional list dated 02.05.1998, the
KPSC had invited the objections from the candidates who appeared for the
examination for the said post. Thereafter certain objections were received, wherein
doubts were raised about possible error in computer programming. After detailed
verification of those objections and in consultation with the experts in that context it
was found that there was an error in randomisation of series inn the computer
programming. In the said circumstances the 2nd respondent – KPSC decided to
withdraw the provisional select list/marks list published on 02.05.1998 in its
notification No.E(2)19/98-99/PSC dated 08.06.1998, copy of which is Annexure-C. It
was also stated in the said notification dated 08.06.1998 that the revised marks list
published did not include the Rural Weightage and that the awarding of marks in
respect of the Rural Weightage would be considered after obtaining the necessary
documents from the eligible candidates and that a revised provisional select list would
be published in due course after verification of all the valid documents from the
eligible candidates. All these petitioners have challenged the said notification dated
08.06.1998 issued by the KPSC., canceling the provisional select list published on
331
02.05.1998 by approaching the Karnataka Administrative Tribunal (for short the
Tribunal) at Bangalore by filing application Nos. 4325 to 4346/1998 and connected
applications. The said applications were dismissed by the Tribunal after considering
the merit of the various contentions raised by the petitioners by orders dated 29.10.98,
17.11.98 and 30.11.98 observing that there is no irregularity and illegality in the action
of the Commission in withdrawing the provisional list and publishing the revised list.
The petitioners, have, therefore, approached this Court praying for quashing of the
said orders of the Tribunal dated 29.10.1998 passed in Applications Nos. 3443 to
3447/98, 4325/98, 4453 to 408 of 98 and 6056 to 6067/98 and for quashing of the
impugned notification bearing No. E2/19/98-99/PSC dated 08.06.98, copy of which is
Annexure-C, by issue of a writ of certiorari and for giving a direction to KPSC to
finalise the provisional select list dated 02.05.1998 subject to corrections of clerical
error, if any, and appoint the petitioners as First Division Assistants by issue of a writ
of mandamus.
2. Respondent No.2 filed their objection statement, inter alia, contending that
after evaluation, a provisional select list was published on 02.05.98 inviting objections
to that list. Several objections were raised indicating in essence that the Computer
Programming may be faulty. In such circumstances, on manual verification of the
answer sheets of the objectors and in consultation with the Experts in that context it
was found that there was an error in randomisation of series in the Computer
Programming. In these circumstances, after going through these aspects and after
calling Mr. K. Hari Anand, Director of M/s. T.R.R. Software Private Limited at
Bangalore, an expert in the concerned field and after going through the report rendered
by him and also after hearing him about the discrepancy/mistake in the randomisation
of the series, the Commission decided to get the proper evaluation of all the series
done. In pursuance of such a decision taken by the Commission, fresh evaluation of
all the series were effected and the Commission in its notification dated 08.06.98 in
No. E(2)19/98-99/PSC, published the revised marks list of all the candidates who had
appeared in the examination, by withdrawing the Provisional Select List/Marks List
published on 02.05.1998. It is also contended by them that the provisional select
list/marks list published on 02.05.98 was withdrawn by the Commission since the said
list never reflected the true and correct position.
3. We have heard the detailed arguments advanced by the learned Counsel
appearing for the petitioners Sri. K. Subba Rao and the learned Counsel for the 2nd
respondent Sri. T. Narayanaswamy.
332
4. The learned Counsel for the petitioners has challenged the impugned orders
passed by the Tribunal and the validity of the notification issued by the 2nd respondent
dated 08.06.98 mainly on three grounds which are as follows:-
1) Before quashing the provisional select list published on 02.05.1998 and 2nd respondent ought to have given notices to all the petitioners who were selected in the said list. As no such notices have been given to the petitioners the said notification dated 08.06.98 canceling the provisional select list dated 02.05.98 published, is liable to be quashed and this aspect of the matter has not been considered by the Tribunal.
2) The Tribunal failed to notice that there was no conscious application of mind by the 2nd respondent before canceling the said provisional select list dated 02.05.98.
3) No sufficient reasons are given by the 2nd respondent for withdrawing the provisional select list and even this aspect of the matter has not been properly considered by the Tribunal.
Alternatively it is contended by the learned Counsel for the petitioners that a
direction is to evaluate all the answers afresh.
5. On perusal of the records, we find no merit in any of the above contentions
urged by the learned counsel for the petitioners. The 2nd respondent has clearly
explained the circumstances under which they decided to withdraw the provisional
select list/marks list published on 02.05.98 in the notification issued in No.E(2)19/98-
99/PSC dated 08.06.98 by producing a copy of the proceedings of the Special meeting
of the Commission held on 27.05.1998 at 12.30 P.M which are to the following
effect:-
"The Commission perused the note and discussed the subject at length. The Commission also went through the randomisation chart and the master key supplied to the Senior Programmer. The Commission observed the error committed at the stage of entering proper key for B,C and D series by the Senior Programmer. The Commission expressed its anxiety over the gravity of the error. The Senior Programmer has replied to the notice issued by the Secretary. A detailed report covering all aspects be placed before the Commission during its next meeting".
Thus sufficient reasons are disclosed in the record of the proceedings of the
special meeting of the Commission held on 27.05.98 for taking the decision to
withdraw the provisional select list published on 02.05.1998 and to get proper
evaluation of all the answer scripts by entrusting the work to Mr. Anand TRR
Software. The second respondent also produced a copy of the report submitted by Sri.
K. Hari Anand, Director for TRR Software Pvt. Ltd., whose opinion was sought in this
333
regard before taking the above decision. The observations of the said expert given in
his report are as follows:-
"1) There are four booklet series in the examination i.e., A,B,C and D.
2) The Computer department staff was given the answer key for 'A' series ad the randomisation chart for series B,C and D.
3) In the evaluation process in the computer, it is the normal, straight forward and a clean process to have four keys to the four series rather than having one key and write a program for randomisation for the other three series. The second process is more cumbersome and more error-prone because it is more difficult to code the program as three different programs have to be coded and secondly the possibility of error occurring the feeding the randomisation chart.
In our experience with neighboring state PSCs where we are involved in scoring the merit list generation also, we adopt four answer keys process rather than randomisation.
4) In this case also your computer department staff has adopted the same procedure. But the error has occurred in entering the answer key for B,C and D series. The randomisation chart shows the question number of each series that carries the same answer. The question numbers are shown horizontal blocks carry the same answer. But your computer department staff has taken 'A' series correctly as it runs from 1 to 100 serially. For the 'B' series instead of taking the same answer for the horizontal block, the Senior Programmer has taken that as the question number reference and has taken the answer for the corresponding question number from A series itself and hence this mistake. This is purely a mistake in understanding the concept of the randomisation chart. The later part of the process namely report generation, I trust is all right as that suffices your requirement".
Thus, it is found from the report of the Expert that there was an error in
randomisation of series in the computer programming. After going through the said
report of the Expert and after personal hearing with Expert, the 2nd respondent – KPSC
decided to get the proper evaluation of all the services done and in pursuance of the
said decision taken by the Commission fresh evaluation of all the series was effected
and the Commission published the revised marks list of all the candidates, who had
appeared in the examination in its notification dated 08.06.98 in No. E(2)19/98-
99/PSC by withdrawing the provisional select list/marks list published on 02.05.98.
We are, therefore, unable to persuade ourselves to accept the contention of the learned
Counsel for the petitioners that no sufficient reasons are given for taking the above
334
decision by the 3rd respondent to cancel the provisional select list published on
02.05.98 and to get the proper evaluation of all the answer scripts done by entrusting
them to Mr. Anand of TRR Software and that there was no conscious application of
mind before cancellation of the provisional select list published on 02.05.98. We are
of the opinion that it would be travesty of justice to allow the said wrongly prepared
provisional select list dated 02.05.98 to be given effect and to be implemented without
permitting the 2nd respondent to publish the correct provisional select list after getting
the answer scripts of all the series evaluated again.
6. The learned Counsel for the petitioners vehemently contended that before
canceling the provisional select list, 2nd respondent ought to have given opportunity of
being heard to the petitioners and as the principles of natural justice have not been
followed, the impugned notification dated 08.06.98 issued canceling the select list
dated 02.05.98 is liable to be quashed. In support of this contention, he relied upon a
decision of the Supreme Court reported in BENNY T.D AND OTHERS Vs.
REGISTRAR OF CO-OPERATIVE SOCIETIES (1998) 5 SCC 269), wherein it was
held that:-
"Where the Registrar of Co-operative Societies came to the conclusion that there was large scale malpractice in recruitment made by a Co-operative Bank and issued notice to the Bank making a bald allegation that the marks awarded and the consolidated marks recorded in the recruitment process are corrected and manipulated without giving specific details taking details taking into account report of the Kerala Public Men's (Corruption, Investigation and Enquiries) Commission without supplying copy to the Bank, held to the inference of malpractice is improperly made".
But the above decision is not applicable to the facts of the present case since in
the instant case fresh evaluation of all the series of answer scripts has been ordered by
the 2nd respondent only on account of the detecting of an error in randomisation of
series in the computer programming and not on account of any detection of
malpractices in the recruitment process. The learned counsel for the petitioners has
also relied upon another decision of the Supreme Court rendered in BOARD OF
HIGH SCHOOL AND INTERMEDIATE EDUCATION U.P. ALLAHABAD Vs.
GHANSHYAM DAS GUPTA and others (AIR 1962 SC 1110), wherein it was held
that :-
"If a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the Statute to act judicially.............
335
The Examinations Committee of the Board of High School and Intermediate Education, U.P., appointed under S.13 of the UP intermediate Education Act 2 of 1921, when it exercises its power under R.1 (1) of Chapter VI of the Regulations framed under S.15, in dealing with cases of examinees using unfair in examination halls, is acting quasi-judicially and the principles of natural justice which require that the other party (namely, the examinee) must be heard, will apply to the proceedings before the Committee. Though there is nothing express one way or the other in the Act or the Regulations casting a duty on the Committee to act judicially, the manner of the disposal based as it must be on materials placed before it, and the serious effects of the decision of the Committee on the examinee concerned, must lead to the conclusion that a duty is cast on the Committee to act judicially in that matter, particularly as it has to decided objectively certain facts which may seriously affect the rights and careers of examinees, before it can taken any action in the exercise of its power under R.1 (1).............. Where no opportunity whatever was given to the examinees to give an explanation and present their case before the Committee, the resolution of the Committee canceling their results and debarring them from appearing at the next examination is vitiated".
We find that the principles laid down in the above decision are not applicable
to the facts of the present case, since in the instant case, it was found that there was no
proper evaluation of answer scripts pertaining to B, C and D series due to the mistake
committed by the staff of the Computer Department which resulted in not properly
evaluating the correct answers in respect of B,C and D series which resulted in error in
randomisation of series. So, the question of giving opportunity to the petitioners,
whose names appeared in the wrongly prepared provisional select list dated 02.05.98,
of being heard, does not arise. Thus, we find no merits in any of the above
contentions urged by the learned counsel for the petitioners. All the above contentions
urged have been considered by the Tribunal in the impugned orders passed. We do
not find any justifiable grounds to interfere with the impugned orders passed by the
Tribunal. The learned counsel for the 2nd respondent submitted that in pursuance of
the decision taken by the 2nd respondent fresh evaluation of all the answers in the
answer scripts of all the series were effected and revised marks list of all the
candidates who had appeared in the examination was published inn the Notification
dated 08.06.1998 by publishing the Provisional Select List/marks list published on
02.05.98. In view of the said submissions made, we do not find it necessary to give
any direction in this regard as requested by the learned counsel for the petitioners.
7. For the above reasons, the writ petitions are dismissed. No costs.
***
336
2000 (2) KLD 741 (DB) Writ Petition Nos. 47 and 8257 of 1999
D.D. 12.8.1999
Hon'ble Mr. Justice Ashok Bhan Hon'ble Mr. Justice R.Gururajan
Karnataka Public Service Commission – Petitioner Vs. Tanakedar Gangappa & Ors. - Respondents
Services – Appointments – Appointments to the post of headmasters/head mistress – Public Service Commission requiring the applications of in service candidates to be forwarded through their appointing authorities – When certain applicants who did not send their applications through their appointing authorities approached the High Court, it directed the Public Service Commission to extend the date to receive their applications clearly mentioning that the order is confined only to the writ petitioners therein – Subsequently the respondents herein who did not figure as writ petitioners in the above writ petition approached the Administrative Tribunal for similar directions and the Tribunal acceded to their request and issued directions similar to those issued by High Court earlier.
Held - the Tribunal is not justified in issuing such directions when it has been
specifically mentioned by High Court in its earlier orders that the directions issued by it are strictly confined to the petitioners therein.
ASHOK BHAN, J:
JUDGMENT
Karnataka Public Service Commission (for short 'the Commission') has field
these writ petitions impugning the order of the Karnataka Administrative Tribunal (for
short, 'the Tribunal') in A. No. 3165-3166 of 1998 dated 25th September, 1998.
2. Shortly stated the facts are:
As per the requisition sent by the State of Karnataka, the Commission issued
notification No. E (1) 22827/96-97/PSC dated 16th October, 1996 inviting applications
from eligible candidates for the posts of Head Masters/Head Mistresses. The last date
fixed for receipt of the application being 30th November, 1996. For the in service
candidate the requirement was that they were to send their applications through the
authorities competent to appoint them. Respondents 1 and 2 (herein after referred to
as 'respondents 1 and 2 did not send their applications through the authorities
competent to appoint them. As such their applications were rejected by the
Commission in view of Rule 5(4) and Rule 11 of the Karnataka Civil Services
(General Recruitment) Rules, 1977 (for short, 'the Rules'). Contending that they had
sent the consent of their appointing authorities on 13th of October, 1997 and relying
upon the directions issued by this Court in WP Nos. 15680-81 of 1998 dated 2nd of
337
September, 1998 providing time to the writ petitioners in those petitions upto 12th of
September, 1998 to produce the certificate from the appointing authority before
Commission to consider their cases, respondents 1 and 2 filed applications before the
Tribunal seeking a direction similar to the one issued by the High Court in WP Nos.
15680-81 of 1998. Tribunal has allowed the applications filed by respondents 1 and 2
basing its decision on the order of the High Court in WP 15680-81 of 1998 decided on
2nd of September, 1998.
3. Similarly situated persons like respondents 1 and 2 had filed application No.
193 of 1998 and other connected cases which were disposed of by the Tribunal on
06.03.1998 holding that the Commission had uniformly followed the procedure of
rejecting the applications of in service candidates on the ground of non-compliance of
Rule 11 of the Rules. Applications complete in all respects had to be submitted to the
Commission before the last date fixed for receipt of applications. As the completed
applications duly forwarded through appointing authorities had not been received by
the Commission before the last date fixed for receipt of the applications justifiable
grounds for interference with the impugned orders rejecting the applications were not
made. The applications were dismissed.
4. Aggrieved against the order of the Tribunal some of the applicants in those
cases filed writ petitions in the High Court. They were numbered as WP 15680-81 of
1998 and other connected cases. The High Court while upholding the order of the
Tribunal gave the following directions keeping in view the facts and circumstances of
the said circumstances of the said case making it clear that the order of the High Court
would not be taken as a precedent in future cases.
"Keeping in view the peculiar facts and circumstances, the interest of the parties and the interests of justice, we dispose of all these petitions with directions that all the writ petitioners herein shall be allowed to comply with the provisions of Rule 11 of the Karnataka Civil Service (General Recruitment) Rules, 1977 on or before 12.09.1998 by submitting the certificates from the appointing authority by giving consent in that behalf before the Public Service Commission and their cases shall be considered for selection to the posts of Head Masters. The claim of the petitioners who fail to comply with the aforesaid Rule in the manner directed within the time specified by us shall be deemed to have rejected. The impugned endorsement dated 29.12.1997 shall be deemed to have been set aside with respect to such of the petitioners who submit compliance Rule 11 as per our directions within the time specified and be deemed to have been upheld with respect to the defaulting petitioners. It is again reiterated that these directions have been issued in the peculiar facts and circumstances without setting any precedent".
338
As per this order the petitioners in those writ petitions were given time up to
12th of September, 1999 to produce the certificate from the appointing authority before
the Commission for consideration.
5. Respondents 1 and 2 in the applications filed by them before the Tribunal
contended that they had sent the consent of their official superiors to apply for the post
on 13th October, 1997 which was much prior to the direction issued by the High Court
in WP 15680-81 of 1998 extending the time up to 12th of September, 1998 for the
petitioners in those writ petitions to produce the certificate from the appointing
authority before the Commissioner for consideration. It was contended that the
decision of the High Court in those writ petitions would be squarely applicable to their
cases as well. On behalf of the Commission it was contended that the order of the
High Court in those writ petitions was applicable to the writ petitioners in those writ
petitions only and the decision of the High Court could not be taken as a precedent to
be followed in the subsequent cases. It was contended that there were certain other
applicants who had filed writ petitions in the High Court subsequently which were
rejected by the High Court holding that the earlier order of the High Court in those
cases could not be cited as a precedent. It was also argued that the order of the High
Court was a produce the certificate from the Head of the Department for having
forwarded the application whereas respondents 1 and 2 had produced the consent letter
issued by the Deputy Director on 13th of October, 1997 and this could not be
considered as permission to apply and that it was only a ratification. That the High
Court had not provided any scope for considering the claim where ratifications were
given.
6. Tribunal in the impugned order noticed the fact that the decision of the High
Court in WP Nos. 15680-81 of 1998 was not to be taken as a precedent for future
cases but applied the ratio of the order of the High Court in WP Nos. 15680-81 of
1998 extending the time till 12th of September, 1998 to the present case holding that
since the consent of the official superiors had been obtained on 13th of October, 1997,
nearly a year earlier to the passing of the order by the High Court, the applicants could
not be denied the benefit which had been extended by the High Court merely because
they had not approached the High Court for the same relief. That a person who had
complied with the direction of the Court much earlier stands on the same footing than
those who were asked to furnish the certificate later. Any other course adopted would
be against equity and travesty of justice.
339
7. The order passed by the Tribunal is unsustainable in law. The High Court
while upholding the order of the Tribunal regarding the settlement on the points of law
in the given facts and circumstances of that case issued directions extending the period
for submitting the certificate up to 12th of September, 1998 with the clear stipulation
that the order passed in that case shall not be used as a precedent for any other case.
Tribunal although conscious of the fact that High Court judgment could not be taken is
a precedent for future cases still proceeded to pass the order extending the benefit by
entertaining the certification or ratification of the applications of R1 and R2 by the
authorities beyond the date fixed for receipt of those applications. A candidate's right
can be considered only when a valid application in all respects as contemplated under
law is received by the authority on or before the last date prescribed. If the reasoning
adopted by the Tribunal is taken to be correct then it would lead to passing of similar
orders repeatedly in all subsequent cases. That was not the intention of the High Court
as directions had been given by it in the peculiar facts and justice. Supreme Count in
Maharshi Dayanand University V. Dr. Anto Joseph and others, (1998) 6 SCC 215,
noticing that inspite of the observations made by the Bench that the order be not taken
as precedent was being repeated by the High Court and in the Courts below, interfered
with the subsequent orders and held that the benefit extended earlier could not be
extended in the subsequent cases treating the earlier cases to be a precedent. It was
observed:
"We might not have interfered had this been an isolated case but we find from reading the orders which have been placed on the record that though the impugned order stated that it was not to be treated as a precedent, it has been followed repeatedly by the High Court and by Courts below. It appears then that it is necessary to interfere to uphold the sanctity of the requirements of the Medical Council of India and the University. These requirements are laid down to ensure that the full period of training necessary for acquiring the qualification is completed and it is in the public interest that they are not lightly deviated from".
8. Tribunal in many cases after the upholding of its earlier decision had dismissed
similar applications field before it. The orders passed were upheld by this Court.
Reference may be made to an order of this Court in WP No. 30158 of 1998 in which
the order passed by the Tribunal was upheld. This Court refused to rely upon the
orders passed by this Court in WP Nos. 15680-81 of 1998 and other connected cases
on the ground that the directions given in those cases were on the peculiar facts and
circumstances of those cases without setting that decision as precedent for future and
that no reliance could be placed on the decision in WP Nos. 15680-81 of 1998 in the
future cases, WP No. 30158 of 1998 was decided on 16th of December, 1998.
340
9. Another reason which persuades us to take this view is that the last date for
interviews was 15th of July, 1998. Provisional list was issued on September, 1998
and the final list was issued on 5th of February, 1999. It was forwarded to the
Government on the 3rd of March, 1998. Appointment orders were issued by the
Government on 3rd of April, 1999. If the directions issued by the Tribunal are to be
carried out now, then it would upset the final selection list as well as the appointments
made. It would be in the fitness of things to draw the curtain and put an end to the
proceedings which may otherwise result in further uncertainty.
10. For the reasons stated above, the writ petitions are accepted. Impugned order
of the Tribunal is set aside and the applications filed by respondents 1 and 2 before the
Tribunal are dismissed.
***
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Writ Petition Nos.12742 and 20616 to 20618/1999 D.D. 8.12.1999
Hon'ble Mr. Justice R.V.Raveendran Mr. Kiran & Others – Petitioners Vs. The State of Karnataka & Others – Respondents
Recruitment to 68 posts of Additional Public Prosecutor/Additional Govt. Pleaders Petitioners who were unsuccessful candidates challenged the recruitment notification and also the select list on the ground that the reservation of 30% for women and 10% for Ex-servicemen was in excess of permissible 50%. The High Court holding that the ceiling of 50% refers to reservation under Article 16(4) only and not other reservations like reservation for women under Article 15(3) and reservation for Ex-Military and Physically Handicapped under Article 16(1) has upheld the relevant recruitment rules providing reservation for women and Ex-MPs and consequently dismissed the writ petitions. Cases referred: 1. AIR 1963 SC 649 - M.R. Balaji Vs. State of Mysore 2. AIR 1993 SC 477 – Indra Sawhney Vs. Union of India 3. AIR 1994 SC 544 – Toguru Sudhakar Reddy Vs. Government of Andhra Pradesh 4. (1995) 4 SCC 520 – Government of Andhra Pradesh Vs. P.B.Vijayakumar 5. (1997) 11 SCC 638 – Union of India Vs. K.P.Prabhakaran
ORDER Second Respondent issued a notification dated 16.5.1998, inviting applications
from eligible candidates for appointment to 68 posts of Additional Public Prosecutor/
Additional Government Pleaders. Out of the 68 posts, 4 posts were backlog
vacancies. The remaining 64 posts were distributed along several reservation
categories and General merit, as pr roster as follows:
Category Total No.of
Posts Sub-categorisation
------------------------------------------------------ Women Ex-Military Men
SC 9 3 1 5 ST 2 1 - 1 Category I 3 1 - 2 Category IIA 9 3 1 5 Category IIB 2 - - 2 Category IIIA 3 1 - 2 Category IIIB 4 2 - 2 General Merit 32 10 3 19 62 21 5 38
2. The selection process contemplated participation in a competitive examination
(three papers of 50 marks each) and appearing for viva-voce. The candidates were
required to secure minimum 40% in each of the examination papers and in the viva-
342
voce, for being considered for selection. The selection was to be made in the order of
merit with reference to the total marks secured in the written examination and viva-
voce and after providing rural weightage as per Government Order dated 14.7.1999.
3. Petitioners were applicants for the said posts. All of them belong to general
merit category. They appeared for the written examination and also appeared for the
viva-voce examination. All of them have secure more than 40% of marks in the
written examination and viva-voce and are therefore eligible for being considered for
selection.
4. A list of 68 selected candidates dated 15.3.1999 was published in the Gazette
dated 1.4.1999, which was amended by corrigendum dated 12.4.1999 (published in the
Gazette dated 22.4.1999). Out of the 68 candidates, 32 have been selected in the
general merit category. None of the petitioners has been selected. Petitioners are
aggrieved.
5. Petitioners contend that the notification dated 16.5.1998 suffers from the
following infirmities:
a) It provides for reservation in excess of permissible 50% by providing out of the 50% meant for general merit category which cannot be subjected to further reservation, a further reservation of 30% for women (10 posts) and 10% for ex-servicemen (3 posts) showing the balance as reservation for 'men'.
b) It provides for rural weightage, even though a learned single Judge of this Court has declared Rule 3B of the Rules providing for Rural weightage as void in BASAVARAJ NAGOOR VS STATE OF KARNATAKA reported in 1999 (1) Kar LJ 486.
6. Hence, petitioners have filed these petitions and sought the following reliefs:
i) To quash the notification dated 16.5.1998 vide Annexure 'A', issued by the second respondent;
ii) To quash the selection list (Annexure-D); iii) A direction to the respondents to consider the case of petitioners in
accordance with law without providing rural weightage and reservations in excess or contrary to law and issue a fresh selection list;
7. Petitioners have filed an application for amendment of the petition, seeking to
add a prayer for declaring Rule 9(1B) of the Karnataka Civil Services (General
Recruitment) (46th Amendment) Rules, 1996 as void. Learned counsel for
respondents have no objection for the said application being allowed. The application
for amendment is allowed and the said prayer is also considered.
343
8. Respondents have contended that there is no infirmity or illegality in the said
notification dated 16.5.1998. It is pointed out that reservation made in favour of
SC/ST/OBCs under Article 16(4) is restricted to 50%. It is contended that reservation
of 30% for women and 10% for ex-servicemen from out of 50% posts left for general
category is not illegal, as the ceiling of 50% reservation applies only to reservation
under Article 16(4) of the Constitution and does not apply to any special provision
made in favour of women under Article 15(3) or reservation made in favour ex-
servicemen or physically handicapped under Article 16(1). It is stated that reservation
of 30% for women has been provided in Rule 9(1B) of the Karnataka Civil Services
(General Recruitment) (46th Amendment) Rules 1977 (for short 'the Rules') as
amended by (46th Amendment) Rules, 1996. It is also stated that reservation of 10% in
favour of ex-servicemen is provided under Rule 9(1) of the Rules and reservation of
4%, is provided for physically handicapped under Rule 9(1A). It is contended that the
reservation made in the impugned notification is strictly in accordance with said Rules
and there is no violation of any constitutional or statutory provisions. In regard to
rural weightage, it is pointed out by the respondents that the decision of the learned
Single Judge holding that rural weightage is invalid, had been challenged in appeal
and the interim stay granted, by the Division Bench enabled the respondents to
prescribe and provide rural weightage.
9. During arguments, the learned counsel for petitioner confined the challenge to
30% reservation for women and did not challenge the 10% reservation for ex-
servicemen. On the contentions raised, the following questions arise for
consideration:
i) Whether the reservation of 30% for women under Rule 9(1B) from out of the posts falling under 50% which remains for general merit category (after providing reservation of 50% for SC/ST/OBCs) is illegal?
ii) Whether extension of rural weightage is invalid?
10. Rule 9(1B) providing for reservation of 30% for women is extracted below:
"(1B) Notwithstanding anything contained in the rules of recruitments specially made in respect of any service or post, in all direct recruitment, thirty percent of vacancies set apart for that method in each of the categories of General Merit, Scheduled Castes, Scheduled Tribes and in each of the categories among other backward classes shall, subject to any general instructions that may be issued by the Government regarding the manner of appointment, be filled from among women candidates.
344
Provided that if sufficient number of eligible women candidates are not available, to the extent of thirty percent, the unfilled vacancies shall be filled by men candidates belonging to the same category.
Provided further that nothing in this rule shall prevent the women candidates from competing and for being considered against seventy percent of direct recruitment vacancies, if selected on the basis of merit."
11. Petitioners contend that having regard to the decision of the Supreme Court,
commencing from M R BALAJI VS STATE OF MYSORE, AIR 1963 SC 649,
ending with INDRA SAWHNEY, (AIR 1993 SC 477) reservation cannot exceed 50%.
But, none of the said decisions say that total reservations cannot exceed 50%. All that
is stated and reiterated in the decisions of the Supreme Court is that reservations under
Article 16(4) should not exceed 50%. The ceiling of 50% refers to reservations under
Article 16(4) only and not other reservations is clear from the decision of the Supreme
Court in INDRA SAWHNEY vs UNION OF INDIA (AIR 1993 SC 477), TOGURU
SUDHAKAR REDDY vs GOVERNMENT OF ANDHRAPRADESH (AIR 1995 SC
544), GOVERNMENT OF ANDHRAPRADESH vs P B VIJAYAKUMAR [(1995) 4
SCC 520] and UNION OF INDIA vs K P PRABHAKARAN [(1997) 11 SCC 638].
These decisions also make it clear that provision of 30% horizontal reservation for
women is valid.
12. In INDRA SAWHNEY's case, this aspect is reiterated in more than one place,
which are extracted below:
"…….just as every power must be exercised reasonably and fairly, the power conferred by clause (4) of Article 16 should also be exercised in a fair manner and within reasonable limits – and what is more reasonable than to say that reservation under clause (4) shall not be exceed 50% of the appointments or posts, barring certain extra-ordinary situations as explained hereinafter………." "We are also of the opinion that this rule of 50% applied only to reservations in favour of backward classes made under Article 16(4)."
Thus, the contention of petitioners that total reservation cannot exceed 50% has to be
clarified by stating that total reservation for backward classes under Article 16(4)
should not exceed 50%.
12.1) Whether there can be other reservations and whether such reservation can be in
addition to 50% reservation made in favour of backward classes under Article 16(4) is
answered thus:
"……. A little clarification is in order at this juncture: all reservations are not of the same nature. There are two types of reservations, which
345
may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal reservations'. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes (under Article 16(4) may be called vertical reservations whereas reservation in favour of physically handicapped (under clause (1) of Article 16) can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to S.C. category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains- and should remain the same."
12.2) Thus, there can be further reservations in each category of reservations for
backward classes, and for general merit, for women, Ex-Military persons and
physically handicapped. It is clear that there can be overall reservation in excess of
50%, provided the reservations under Article 16(4) does not exceed 50% and the
reservation in excess of 50% is made in accordance with law.
13. The question whether there can be any reservation in favour of women,
directly came up for consideration in VIJAYAKUMAR's case. The Supreme Court
made it clear that there can be a reservation in favour of women under Article 15(3) of
the Constitution, in addition to the reservation in favour of backward classes under
Article 16(4) and that the reservation in favour of women under Article 15(3) is not to
be considered as part of the reservation for backward classes under Article 16(4). The
relevant portions of the said decision is extracted below:
"6. This argument ignores Article 15(3). The interrelation between Articles 14, 15 and 16 has been considered in a number of cases by this Court. Article 15 deals with every kind of State action in relation to the citizens of this country. Every sphere of activity of the State of controlled by article 15(1). There is, therefore, no reason to exclude from the ambit of Article 15(1) employment under the State. At the same time Article 15(3) permits special provisions for women. Both Article 15(1) and 15(3) to together. In addition to Article 15(1), Article 16(1), however, placed certain additional prohibitions in respect of a specific area of State activity viz. employment under the State. These are in addition to the grounds of prohibition enumerated under Article 15(1) which are also included under article 16(2). There are, however, certain specific provisions in connection with employment under the State under Article 16. Article 16(3) permits the State to prescribe a requirement of residence within the State or Union Territory by parliamentary Legislation; while Article 16(4) permits reservation of posts in favour of backward classes. Article 16(5) permits a law which
346
may require a person to profess a particular religion or may require him to belong to a particular religious denomination, if he is the incumbent of an office in connection with the affairs of the religious or denominational institution. Therefore, in dealing with employment under the State, it has to bear in mind both Articles 15 and 16 – the former being a more general provision and the later, a more specific provision. Since Article 16 does not touch upon any special provision for women being made by the State, it cannot in any manner derogate from the power conferred upon the State in this connection under Article 15(3). This power conferred by Article 15(3) is wide enough to cover the entire range of State activity including employment under the State.
6. The insertion of clause (3) of Article 15 in relation to women is recognition of the fact that for centuries, women of this country have been socially and economically handicapped. As a result, they are unable to participate in the socio-economic activities of the nation on a footing of equality. It is in order to eliminate this socio-economic backwardness of women and to empower them in a manner that would bring about effective equality between men and women that Article 15(3) is placed in Article 15. Its object is to strengthen and improve the status of women. An important limb of this concept of gender equality is creating job opportunities for women. To say that under Article 15(3), job opportunities for women cannot be created would be to cut at the very root of the underlying inspiration behind this article. Making special provisions of women in respect of employment or posts under the State is an integral part of Article 15(3). This power conferred under Article 15(3), is snot whittled down in any manner by Article 16."
13.1) The Supreme Court also specifically held making "any special provision for
women" by the State under Article 15(3) can be in the form of either affirmative
action or reservation for women. Referring to the limits of reservation, the Supreme
Court held that reservation limit under Article 16(4) has been broadly fixed at 50%
maximum and the same reasoning would apply to reservation under Article 15(3).
Thus, if the limit of vertical reservation under Article 16(4) is fixed at 50% of the total
posts, the horizontal reservation under Article 15(3) and Article 16(1) can also be upto
50% of the posts under each category determined by vertical reservation. In other
words out of 50% seats remaining for general merit category, (after providing 50% by
way of vertical reservation for Backward Classes) upto 50% can be reserved under
Article 15(2) and 16(1) for women, Ex-Military and Physically handicapped.
14. In TOGURU SUDHAKAR REDDY's case, the Supreme Court held that the
ceiling of 50% was applicable only for reservation under Article 15(4) and 16(4) of
the Constitution and any special provision for women under Article 15(3) can be in
addition to the 50% reservation under Article 15(4) and 16(4).
347
15. In PRABHAKARAN's case, the Supreme Court, following the decision in
VIJAYAKUMAR's rejected the contention that reservation under Article 15(3) in
favour of women can be only in regard to matters other than employment and held
reservation for women can be in matters of employment also.
16. In view of the above, the reservation of 30% in favour of women under Rule
9(1B) is valid and permissible. By the same reasoning the reservation 10% for Ex-
Military persons and reservation of 4% for physically handicapped under rule 9(1) and
Rule 9(1A) are also valid. The challenge to the validity of rule 9(1B) is rejected.
17. The petitioners point out that the notification makes reservation for men and to
that extent, it is invalid. The respondents have clarified the matter by stating that there
is no reservation for men as such; that out of 32 posts falling under the genera merit
category, after showing the posts reserved for women (30%) and ex-servicemen
(10%), the remaining posts have been wrongly shows as 'men' instead of being shown
as 'balance' due to a clerical mistake. It is stated that in making selections, effect has
been given to second proviso to Rule 9(1B) which makes it clear that the provision for
reservation of 30% for women will not prevent the women candidates from competing
and for being considered against remaining direct recruitment vacancies, if selected on
the basis of merit.
18. Learned Counsel for petitioners lastly contended that application of roster, as
indicated in Government Order dated 15.7.1996 (Annexure 'B'), would result in a
women candidate under the General Merit category with lesser marks being placed
above a male candidate in the general merit category with higher marks. There is no
merit in this contention. The respondents have clarified that roster points are taken
into account only to determine the total number of posts that are to be allotted to each
reservation category including women candidates and ex-servicemen, and in the final
list of selected candidates, the placing is with reference to merit and therefore the
question of placing is with reference to merit and therefore the question of placing any
candidate with lesser percentage at a position higher than a candidate with more
percentage does not arise at all. In view of the said clarification, there is no basis for
the apprehension that women candidates with less percentage will be placed above
men candidates with higher percentage.
Point (ii):
19. The question relating to rural weightage is covered by the decision in
BASAVARAJ NAGOOR's case. Rule 3B of General Recruitment Rules provided for
348
weightage of marks to rural candidates. A learned Single Judge, in BASAVARAJ
NAGOOR vs STATE OF KARNATAKA AND ANOTHER (1999 (1) KLJ 488),
declared that the said rule 3B is void. He however clarified that notwithstanding the
said declaration, the appointments of persons already made on the basis of 'rural
weightage' and who are working in their posts will not be disturbed and their
appointment will not be adversely affected.
20. The decision of the learned Single Judge was challenged by the State in WA
5807/1998. The Division Bench by its order dated 26.11.1999 rejected the appeal and
affirmed the decision of the learned single Judge declaring that Rule 3B is void. The
Division Bench also observed thus:
"We affirm the observations made by the learned Single Judge that the candidates who have already been appointed by giving 'rural weightage' should not be disturbed and also the persons who had been appointed during the pendency of these appeals until now on the basis of rural weightage."
In view of the decision of Division Bench in Writ Appeal No.5807/1998, the selection
list will not to be redone by excluding rural weightage as the persons selected in this
case, are not yet appointed.
21. In view of above, these petitions are disposed as follows; allowed in part as
follows suitably modifying the reliefs:-
(a) Rule 9(1B) of the Karnataka Civil Services (General Recruitment) Rules 1977, introduced by (46th Amendment) Rules, 1996 is upheld;
(b) The challenge to the selection list on the ground that it provides for excess reservation is rejected;
(c) As the provision for rural weightage has been struck down, the respondents are directed to redo the selection list as per the observations in para 22 of the judgement of the Division Bench in STATE OF KARNATAKA Vs BASAVARAJ NAGOOR (WA 5807/1998 and connected cases decided on 26.11.1999).
***
349
2000(2) KLD 719 Writ Petition NO.40700 of 1999
D.D. 8.12.1999
Hon'ble Mr.Justice R.V.Raveendran
Renuka – Petitioner Versus Karnataka Public Service Commission & Anr. - Respondents Examinations – Candidate not able to appear for the examination within the prescribed time due to bandh or any other cause – It is not a ground to hold special examination for the said candidate.
ORDER
The Karnataka Public Service Commission had issued a notification dated 9-3-
1998 inviting applications for the posts of Gazetted Probationers Group ‘A’ and ‘B’.
The petitioner was an applicant for the said post. The KPSC held the preliminary
examination on 30-8-1998. The petitioner took the said examination and became
eligible to take the main examination. The main examination was geld on 10-4-1999
to 3-5-1999 at Bangalore, Mysore, Gulbarga and Hubli-Dharwad. The Admission
Tickets were sent to all candidates including the petitioner. The Petitioner claims that
due to strike and bundh at Hubli-Dharwad, she could not reach the Examination Hall
at the appointed hours, viz., 9.30 a.m., on 10-4-1999 and she was late by 25 minutes;
and even though she entered the Examination Hall at 9.55 a.m., within the grace
period of 30 minutes, the Room Superintendent did not permit her to take the
examination. Feeling aggrieved, the petitioner gave several representations to permit
her to appear for the examination. The same has been rejected as per communication
dated 28-9-1999 at Annexure-D, on the ground that the petitioner did not appear for
the examination in time.
2. Feeling aggrieved, the petitioner has filed this petition seeking a direction for
quashing Annexure-D dated 28-9-1999 and a direction to conduct the special Kannada
examination for the petitioner before announcing the result or alternatively to exempt
the petitioner from appearing for Kannada examination. The petitioner has also
sought for a consequential relief of reservation of one seat pending decision.
3. The respondents have filed objections. They have denied the several
allegations made by the petitioner about her inability to attend the Examination Hall in
time on account of strike, bundh, etc. The respondents have also denied that the
petitioner entered the Hall at 9.55 a.m.
350
4. The respondent placed reliance on clauses (2) and (13) of the Instructions sent
along with the Admission Ticket which are extracted below:
“ Item No. 2: The candidate should enter the Examination Hall 20 minutes before the prescribed time from the commencement of the examination and sit himself/herself in the seat allotted and they should bring one more copy of the photograph pasted in their application for the Main Examination. Item No.13: No candidate shall be admitted to the examination hall 30 minutes after the commencement of a paper. No candidate should leave the examination hall until 45 minutes have lapsed, after the commencement of the paper and during the last 5 minutes before the close of the examination.’’
He also placed reliance on the Item No.10 of the Instructions which is extracted
below:
“ 10. No candidates shall be allowed to enter the Examination Hall/room Thirty minutes after the commencement of the examination for both the sessions, under any circumstances whatsoever. Neither the Supervisor nor the Invigilator nor any other authority has any discretionary power in this regard.’’
The respondents contend that if petitioner had appeared before 10.a.m., i.e., within 30
minutes from the commencement of the examination, she would have been permitted
to appear for the examination, but the petitioner did not appear before 10 a.m., and she
came to the Examination Hall after 10 a.m., i.e., after the grace period of 30 minutes.
Hence she was not permitted to take the examination. The respondents, therefore,
contend that the petitioner is not entitled to any relief. The Invigilator or
Superintendent in the Examination Hall had no personal interest in the matter and if
petitioner had appeared within the grace period, she would not have been prevented
from taking the examination. Therefore, it is difficult to believe the claim of the
petitioner that she went to the Examination Hall at 9.55 a.m.
5. Learned Counsel for the respondents submitted that as many as 12,500
candidates took the examination and the petitioner is the only person who complained
that she could not reach the Hall on account of strike, bundh, etc., be that as it may.
When an examination is held for a large number of persons, if one of the candidates is
not able to reach the Examination Hall for whatsoever reason, that by itself cannot be
a ground for directing a special examination for such candidate. If a special
examination is sought in all cases of hardship, and is permitted by the Commission,
there will be no end for the examination process and a body like KPSC which receives
applications from lakhs of candidates can not complete the process of selection or able
to select the candidates. Hence, strict compliance with the instructions to candidates
351
is necessary. If in a particular case, a candidate is not able to follow the instructions
or take the examination, that is his misfortune, Grant of relief against Commission can
be considered only when there is a willful act of omission or commission on the part
of KPSC which prevents a candidate from taking the examination or where a large
number of candidates are affected due to an unforeseen obstacle.
6. Hence, petitioner is not entitled to the relief sought. There is no merit in the
petition. The writ petition is rejected.
***
352
2000 (2) KLD 762 W.P.Nos.42746 to 42751 of 1999
D.D. 25.2.2000 Hon'ble Mr. Justice P.Vishwanatha Shetty
Nataraju.S. & Others – Petitioner Versus State of Karnataka & Others
Appointment to the post of Lecturers – Public Service Commission preparing three lists viz., main list, an additional list and an extra list – Petitioners included in the extra list claiming appointments on the ground that it is a list prepared under Rule 7(2) – Commission denying the same and asserting that the said list is only an extra list but not an additional list and therefore the petitioners cannot claim appointments – Held - The plea of the Commission is correct and therefore the petitioners cannot claim appointments.
ORDER
The petitioners, who were applicants to the post of Lecturers pursuant to the
advertisement issued by the Karnataka Public Service Commission (hereinafter
referred to as “the Commission”), in these petitions, have sought for direction to the
respondents to operate the select list in accordance with the ranking assigned in the
select list and appoint them as Lecturers.
2. The few facts, which are not in serious dispute, may be stated as follows:
(a) The Commission, pursuant to the requisition made by the first respondent State Government, had, by means of its notification dated 29th of June, 1999, invited applications from eligible candidates to fill up 864 posts of Lecturers in 19 different subjects, which includes 13 backlog posts, in Government Junior Colleges. Thereafter, the provisional select list was published containing 839 candidates in the main list; 84 candidates in the additional list and 241 candidates in the extra list. Subsequently, verification of the testimonials of the candidates belonging to the reserved category, in the main, additional and extra lists, was got done; and thereafter, the final select list containing 839 candidates and additional list containing 84 candidates, were published and forwarded to the State Government.
(b) The area of controversy in these petitions is with regard to the
rights of the persons, whose names are found in the extra/additional list. While the petitioners contend that the list of the persons found in the additional list is a list prepared under the proviso given to sub-rule (2) of Rule 7 of the Karnataka State Civil Services (Direct Recruitment by Selection) Rules, 1973 (hereinafter referred to as “the Rules”), the respondents would contend that it is only an extra list prepared only of persons belonging to reserved persons belonging to reserved categories are not found eligible to be appointed. According to the respondents, the names of 241 persons found in the extra list, cannot be treated as additional list and it has no statutory force, and the persons whose names are found in the said list, have no right to be appointed.
353
3. Sri Lakshminarayana, learned Counsel appearing for the petitioners, in support
of the prayer of the petitioners that their case is required to be considered for
appointment on the basis of the ranking assigned to them in the additional list/extra
list, submitted that since the list in question has been prepared in terms of the proviso
given to sub-rule (2) of Rule 7 of the Rules, so long as the vacancies are available, the
respondents are bound to appoint the petitioners as per the ranking assigned in the said
list. It is his submission that non-consideration of the case of the petitioners for being
appointed as Lecturers though their names are found in the list in question, is highly
arbitrary, discriminatory, unreasonable and violative of the right guaranteed to the
petitioners under Articles 14 and 16 of the Constitution of India. He would
vehemently point out that the list in question prepared being one under the proviso
given to sub-rule (2) of Rule 7 of the Rules, it must be understood as a select list.
Therefore, according to him, once the petitioners are found in the select list, the
respondents have no option, but to appoint them so long as the vacancies exist.
Elaborating this, he submitted that the additional list has been prepared pursuant to the
decision of the Government; and on that basis, the verification regarding testimonials
of the petitioners has been made; and therefore the respondents cannot now refuse to
appoint the petitioners on the ground that the said list is not intended to be operated
upon and it is only an extra list. In support of his submission, Sri Lakshminarayana
relied upon the decisions of the Supreme Court in the case of Prem singh and Others v.
Haryana State Electricity Board, (1996) 4 SCC 319 and in the case of Virendra Hooda
and others v. State of Haryana and another, (1999) 3 SCC 696.
4. However, Sri Narayanaswamy, learned Counsel appearing for the Commission,
strongly countered the arguments of Sri Lakshminarayana. It is his submission that
the entire assumption made by the petitioners that the list in question is a list prepared
as provided under the proviso given to sub-rule (2) of Rule 7 of the Rules, is an
erroneous assumption, which is not supported by any facts. It is his submission that
the list in question was not prepared in terms of the proviso given to sub-rule(2) of
Rule 7 of the Rules or on the basis of any decision taken by the Government.
According to him, the list in question consists of the names of candidates belonging to
only reserved category; and the same has been prepared with a view to consider the
case of the candidates in the said list in the event of any candidate/s in the select list
belonging to reserved category, not being found eligible to be appointed on the ground
that they do not belong to reserved category; and it is not intended to made any
appointment for any vacancy other than the one notified. He further pointed out that
under similar circumstances, this Court, in the case of Kum. Hemavathi v. The
354
Secretary, Karnataka Public Service Commission, Bangalore and others, Writ Petition
No. 40829 of 1999 disposed of on 3rd of December, 1999, has negatived the similar
contention.
5. Sri K. Nagaraj, learned Additional Government Advocate, supported the
submission of Sri Narayanaswamy.
6. The only question that would arise for consideration is whether the list in
question is a list prepared as provided under the proviso given to sub-rule (2) of Rule 7
of the Rules; and if the answer is in the positive, whether the petitioners are entitled
for a direction to appoint them as Lecturers?
7. Having given my anxious consideration to the submissions very effectively
made by learned Counsel appearing for the parties, I am of the view that the reliefs
sought for by them. The undisputed facts disclose that applications were invited for
filling up of 864 posts by the Commission and the names of the petitioners were not
found, even according to the petitioners, in the first two lists; and their names are
found only in the third list. According to the petitioners, the additional list is prepared
as provided under the proviso to sub-rule (2) of Rule 7 of the Rules. However, it is the
case of the Commission that the said list is not an additional list prepared in terms of
the proviso given to sub-rule (2) of Rule 7 of the Rules, but it is only an extra list
prepared consisting of only candidates belonging to reserved categories for the
purpose of consideration in the event of the reserved candidates in the select list not
being found eligible for appointment. In this connection, it is useful to refer to the
statement made by the Commission in paragraph-1 in the reply statement filed to the
rejoinder filed by the petitioners, which reads as hereunder:
“………The State Government had requested to fill up 851 + 13 backlog posts of Lecturers in the Government Junior Colleges in 19 different subjects. The provisional selection list was published containing 839 in the main list, 84 in the additional list and 241 candidates in the extra list pertaining to reserved categories. After receipt of the validity certificates of the candidates selected under reservation, the final select list containing 839 in the main list and 84 in the additional list was published and forwarded to the Government for effecting appointments. The concept of this extra list has been clearly reflected in the objection statement already filed on the side of the 2nd respondent and that may kindly be read as part and parcel of these objections.’’
Again, at paragraph-3 of the reply, it is stated by the Commission as follows:
“ With regard to the contentions of the petitioners at para-7 that the Commission had appointed 50% more than the posts advertised etc., are all hereby denied. In pursuance of Rule –7 (2) of the Rules, as and when the Appointing Authority requested the Commission and in view
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of the said rules, the Commission only at the behest of the Executive Government, had taken action on their requisition. In the recruitment in question there was no requisition by the Appointing Authority for including the number of candidates for preparation of 50% additional list. In these circumstances, the recruitment that was done containing 939 candidates in the main list and 84 candidates in the additional list (10%) is legally justified. As to how the extra list which the petitioners are now banking upon has no legal existence at all, has been detailed in the objection statement already filed by this respondent.’’
Therefore, as noticed by me earlier, it is the specific case of the Commission that the
list, referred to above, on which reliance is placed by the petitioners, is not an
additional list prepared as provided under the proviso given to sub-rule (2) of Rule 7
of the Rules, and it is only an extra list, which has no legal basis. Admittedly, the
State Government had requested the Commission to fill up in all only 864 posts of
Lecturers, which includes 13 backlog posts in Government Junior Colleges.
Therefore, the posts notified for appointment were only 864 posts. Admittedly, the
provisional list published contained 839 candidates in the main list and 84 candidates
in the additional list. Further, 241 candidates found in the extra list, consist of the
candidates belonging to reserved categories only. It cannot be disputed that once the
candidates belonging to reserved categories are selected and their names are found in
the select list, the verification with regard to the caste and the claim made by them that
they belong to the reserved category is required to be enquired into and on the basis of
the enquiry so held, such of those candidates who do not come under the reserved
category, will not be put in the final select list and they will not be given appointment
order. Therefore, it is the case of the Commission that such number of vacancies
required to be filled up from reserved categories, which remain vacant for want of
reserved candidates selected in the first list and the additional list, would be
considered from the extra list; and they would be appointed. I have no reason to
disbelieve the version of the Commission on this aspect of the matter. The Secretary
of the Commission has made a statement on oath with regard to the circumstances
under which the extra list came to be prepared by the Commission. Merely because
the verification regarding caste in respect of the candidates found in the list in
question, was got done as claimed by the petitioners, is not a ground to take the view
that the persons whose names are found in the list in question, are the candidates
selected for appointment and the list in question was a list prepared in terms of the
proviso given to sub-rule (2) of Rule 7 of the Rules. Since the number of posts for
which applications were invited, were only 864, in normal circumstances, it was not
permissible for the Commission to prepare one more additional list containing 241
candidates of selected candidates. Further, it is not in dispute that the 241 candidates
found in the list in question all belong to reserved category. If the list prepared is to
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be construed as the additional list, as contended by Sri Lakshminarayana prepared
under the proviso given to sub-rule (2) of Rule 7 of the Rules, it must contain the
names of the candidates belonging to general merit as well as the reserved category.
Admittedly, no one belonging to general merit is in the list in question. Further, there
is no material on record to show that the list in question was prepared pursuant to the
decision taken by the appointing authority, i.e., the State Government, directing the
Commission to prepare a select list as provided under the proviso given to sub-rule (2)
of Rule 7 of the Rules. In this context, it is useful to extract Rule 7 of the Rules,
which reads a follows:
“ 7. List of selected candidates—
(1) The selecting authority shall on the basis of the aggregate of the percentage of the total marks secured in the qualifying examination as determined under Rule 5 and of the marks secured at the interview under Rule 6 and taking into consideration the orders in force relating to reservation of posts for Scheduled Castes, Scheduled Tribes, Backward Tribes and other Backward Classes prepare in the order of merit a list of candidates eligible for appointment to the cadre or post and if the aggregate of the percentage of total marks secured in the qualifying examinations as determined under Rule 5 and of the marks secured at the interview under Rule 6 of two or more candidates is equal, the order of merit in respect of such candidates shall be fixed in accordance with Rule 5. The number of candidates to be included in such list shall be equal to be filled:
Provided that the number of vacancies so required to be filled
shall not be more than fifty percent in excess of the number of vacancies provisionally notified under Rule 4 (1).
(2) The selecting authority shall in accordance with the provisions of sub rule (1) also prepare an additional list of names of candidates not included in the list prepared under sub-rule (1) in which the number of candidates to be included shall, as far as possible, be ten percent of the number of vacancies notified: Provided that if the appointing authority so requires the number of candidates to be included in the list shall be such as may be specified by the appointing authority but not exceeding fifty percent for the number of vacancies notified.
(3) The lists so prepared under sub-rules (1) and (2) shall be published in such manner as the State Government may direct and a copy thereof shall be sent to the appropriate authority.
As it can be seen from the scheme of the Rules, the Commission is required to
prepare a select list in terms of sub-rule (1) of Rule 7 of the Rules in the order of merit
taking into consideration the orders in force relating to reservation of posts for
Scheduled Castes, Scheduled Tribes, Backward Tribes and other Backward Classes.
The said provision makes it clear that number of names of the candidates to be
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included in such a list, would be equal to be number of vacancies notified. Therefore,
sub-rule (1) of Rule 7 of the Rules contemplates the preparation of a list consisting of
the number of candidates equivalent to the number of vacancies notified. In the
instant case, the vacancies notified are 864. The provisional list published contained
839 names. Sub-rule (2) of Rule 7 of the Rules further requires the selecting authority
i.e., the Commission, to prepare a list known as ‘additional list’ of the names of
candidates not included in the list prepared under sub-rule (1), as far as to an extent of
10% of the vacancies notified. In the instant case, since the vacancies notified being
864 the additional list could contain the names of 86 candidates. Admittedly, the
additional list published consisted of 84 candidates. This clearly shows that the
provisional list of 839 candidates and additional list of 84 candidates were published
in terms of sub-rule (1) and (2) of Rule 7 of the Rules. As observed by me earlier,
there is absolutely no basis to accept the contention of the learned Counsel for the
petitioners that the list containing 241 candidates, which the learned Counsel for the
petitioners terms it as an additional list, is an additional list prepared under the proviso
given to sub-rule (2) of Rule 7 or the Rules. Therefore, in the facts and circumstances
of this case, I have no hesitation to accept the contention of Sri Narayanaswamy,
learned Counsel for the Commission, that the list in question is only an extra list
intended to be operated only in the event of the reserved candidates in the main list
and in the additional list, not being eligible for appointment on verification by the
Caste and Income Verification Committee and other Authorities; and the said list has
no statutory force or binding effect which confers a right on the candidates found in
the said list to seek for a direction to appoint them as Lecturers. The decision of this
Court in the case of Kum. Hemavathi, (supra), relied upon by Sri Narayanaswamy,
also supports the view I have taken above. Under similar circumstances, this Court,
after examining the similar contention, at paragraph-4 of the judgment, has observed
as follows:
“ The statement of objections of the first respondent makes it clear that petitioner was not selected. The extra list was intended to be operated only if candidates selected in the main list and additional list on the basis of reservation were found to be not entitled to reservation on verification by the Caste and Income Verification Committee. As it is stated that there was no need to fill the vacancies by taking candidates from the extra list, it lapsed. The petitioner is not therefore entitled for appointment. There is no irregularity or infirmity in the procedure adopted by the first respondent.”
Further, it is also necessary to point out that since it is not in dispute that the
list in question only consists of candidates belonging to reserved category, if a
direction is to be issued to appoint the candidate in the said list, it will also affect the
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roster fixed by the Government. Admittedly, no one belonging to the general merit is
included in the said list. If the candidates found in the said list are directed to be
selected ignoring the roster fixed by the Government on the basis of various orders
issued under Article 16 (1) of the Constitution of India, it will seriously affect the
rights guaranteed to the other candidates who belong to general group, under Article
14 and 16 (1) of the Constitution of India. This Court, in exercise of its power under
Article 226 of the Constitution of India, cannot direct the State or the Commission to
do an act which runs counter either to the mandates of law or Constitutional provision.
Therefore, on this ground also, the prayer of the petitioners for a direction to
implement the list in question is required to be rejected.
8. In the light of the conclusion reached by me that the list in question is only an
extra list, I find it unnecessary to decide the question as to whether the persons found
in the list prepared in terms of the proviso given to sub-rule (2) of Rule 7 of the Rules
are entitled to be appointed, as contended by the learned Counsel for the petitioners in
these petitions.
9. For the reasons stated above, I do not find any merit in these petitions.
Therefore, these petitions are liable to be rejected and accordingly, they are rejected.
10. However, no order is made as to costs.
***
359
Writ Petition No. 1183 of 2000 D.D. 11.2.2000
Hon'ble Mr. Justice P.Vishwanatha Shetty Nalini K – Petitioner Vs. K.P.S.C. – Respondent Recruitment to the post of Assistant Librarian Along with the application the petitioner had produced marks cards of I, II and III semesters of Diploma in Library Science but produced extract of marks in respect of IV semester, as she had not received the original marks card. The petitioner was permitted to appear for the interview as per the interim order of the High Court. The petitioner was not selected on the ground that she did not produce the original marks card of the IV semester. The petitioner subsequently produced the certificate dated 24.11.99 showing that the petitioner has secured I Rank in the Final year Examination of Diploma in Library Science. In view of the fact that the petitioner has produced extract of marks of IV semester and she passed the examination held in April – May 1999 before the last date fixed for receipt of applications i.e. 10.8.99, the High Court allowed the writ petition and directed the Commission to consider the claim of the applicant for selection on the basis of the interview held on 13.1.2000.
ORDER The petitioner in this petition has sought for a direction to the respondent-
Commission to call the petitioner for interview for appointment to the post of
Assistant Librarian in the Department of Indian System of Medicine and Homeopathy
pursuant to the Notification/paper publication dated 6th July 1999, a copy of which has
been produced as Annexure-B along with the writ petition.
2. A few facts that may be relevant for the disposal of this petition may be stated
as hereunder:
The petitioner pursuant to the Notification issued by the respondent calling for
applications for appointment to the post of Assistant Librarian submitted her
application on 21st July 1999. The last date fixed for submission of the application
was 10th August 1999. Along with the applications, the petitioner had produced the
marks card of the first, second and third semester of Diploma in Library Science.
However, it is the case of the petitioner that since she had not received the original
marks card of the fourth semester, she had produced the extract of the marks
communicated to the institution wherein the petitioner was studying, authenticated by
the Principal of the institution.
3. Pursuant to the application submitted by the petitioner, she was called for
interview for the purpose of selection to the post of Assistant Librarian on 1st
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December 1999. The interview card sent to the petitioner has been produced as
Annexure-F. However, subsequently, the petitioner was notified that the interview
fixed on 1st December 1999 was cancelled. The petitioner was further intimated by
means of communication dated 26th November 1999, a copy of which has been
produced as Annexure-G that the further date of the interview would be
communicated later. However, though the interview was later fixed on 13th January
2000, since the petitioner was not called for interview, the petitioner has presented this
petition seeking for a direction to call for appointment to the post of Assistant
Librarian.
4. This Court on 11th January 2000 directed the Commission to permit the
petitioner to appear for the interview. Subsequent to the direction, the petitioner was
permitted to appear for the interview. It is the case of the petitioner that on the date of
the interview, the petitioner had produced the original marks card of the fourth
semester. Though this factual aspect is not disputed in the statement of objections filed
on behalf of the Commission, however, it is the case of the Commission that since the
petitioner did not produce the marks card of the fourth semester and she had only
produced the extract of the marks of the fourth semester, the petitioner was not called
for interview.
5. Sri. S.P. Shankar, learned counsel appearing for the petitioner in support of the
prayer of the petitioner that the petitioner’s case is required to be considered for
appointment to the post of Assistant Librarian made two submissions. Firstly, he
submitted that the petitioner having complied with all the conditions prescribed in the
Notification-Annexure-B issued by the Commission calling for applications, it was not
permissible for the Commission calling for refuse to consider the case of the petitioner
for appointment to the post of Assistant Librarian. Elaborating this submission, he
pointed out that the Notification-Annexure-B does not stipulate that the petitioner is
required to produce the marks card issued to her. The only condition according to the
learned counsel which is stipulated in Annexure-B is that the petitioner should
possesses the requisite qualification prescribed on the last date fixed for filing of the
application. Sri Shankar points out that the extract of the marks card-Annexure-C
issued by the Principal of the College which has been received by the petitioner from
the Department of Technical Education and the marks card of the first, second and
third semester would clearly show that the petitioner possessed the requisite
qualification i.e., Diploma in Library Science on the last date prescribed for
submission of her application. Therefore, he submits that since there has been full
compliance of the requirement of the notification, it is not permissible for the
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Commission to refuse to consider the case of the petitioner for appointment to the post
of Assistant Librarian. Sri Shankar relying upon the certificate dated 24th November
1999, a copy of which has been produced as Annexure-D issued by the Principal of
the Government Polytechnic for Women, wherein the Principal has certified that the
petitioner has secured first rank in the final year examination of Diploma in Library
Science in the State, submits that great injustice will be caused to the petitioner if the
case of the petitioner is not directed to be considered by the Commission on merit as
she is a highly meritorious candidate. Secondly, he submitted that even assuming that
the petitioner has not strictly complied with the requirements as prescribed under
Notification dated 2nd July 1999 published in Karnataka Gazette in respect of which
strong reliance is placed by the Commission, since the petitioner had already been
called for interview by means of Communication-Annexure-F and thereafter the
petitioner was notified that she would be called for interview at a later stage by means
of Communication-Annexure-G dated 26th November 1999, it must be held that the
non-compliance of the conditions was waived by the Commission so far as the
petitioner is concerned as the Commission was fully satisfied that the petitioner
possessed the requisite qualification. Therefore, he submits that the respondent must
be directed to consider the case of the petitioner pursuant to the interview held on
merits.
6. However, Sri Narayanaswamy, learned counsel appearing for the Commission
while strongly refuting the contention of Sri Shankar submitted that since the
application submitted by the petitioner did not accompany the marks card of the fourth
semester, the petitioner was not called for interview fixed on 13th January 2000. He
relied upon the Notification dated 2nd July 1999 published in Karnataka Gazette, and
submitted that clause 9.1 casts an obligation on the candidate to produce the marks
cards of all the semesters and since the petitioner had only produced the extract of the
marks of the fourth semester the application filed by the petitioner being defective, the
Commission was justified in not calling her for the interview fixed on 13th January
2000. He also relied upon the Division Bench decision of this Court in the case of
SMT. BHAGYAMMA Vs. K.P.S.C. & ANOTHER in Writ Petition No. 5677 of 1998
disposed of on 21st September 1998, wherein the Division Bench has taken the view
that a candidate who has failed to produce the requisite certificate along with
application submitted to the Commission is not entitled to insist upon principles of
natural justice. Further, he also relied upon the Division Bench decision of Kerala
High Court in the case of K. RANGASWAMY Vs. KERALA PUBLIC SERVICE
COMMISSION & ANOTHER reported in 1982 (2) SLR 187, wherein the Division
Bench of Kerala High Court has taken the view that it will not be with the province of
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the Court to whittle down the conditions and stipulations by the Public Service
Commission. He also relied upon the decision of the Supreme Court in the case of
KARNATAKA PUBLIC SERVICE COMMISSION & OTHERS Vs. VIJAYA
SHANKAR & OTHERS reported in AIR 1992 SC 952 in support of his contention
that the instructions issued by the Public Service Commission is mandatory in nature.
7. In the light of the rival contentions advanced by the learned counsel appearing
for the parties, the only question that would arise for consideration in this petition is
whether the Commission is justified in refusing to consider the application submitted
by the petitioner to consider the application submitted by the petitioner on the ground
that the application submitted does not satisfy the instructions given in the Notification
dated 2nd July 1999 published in Karnataka Gazette.
8. The undisputed facts would show that the petitioner has produced the extract
of marks statement issued by the principal of the Polytechnic as per Annexure-C. It is
useful to extract the marks statement-Annexure-C which reads as follows:
“ GOVERNMENT OF KARNATAKA” DEPARTMENT OF TECHNICAL EDUCATION Register No. 2/32 Office of the Principal Govt. Polytechnic for women Mangalore - 575 008 Date: 21-7-1999. Name of the Student: NALINI K. EXTRACT OF MARKS STATEMENT OF COURSE: LIBRARY SCIENCE CLASS: 4TH Semester
Sl.no. SUBJECT Maximum Marks Marks scored 01 02 03 04
Planning and Management of Information Systems service Information Systems and Programme Project work/Viva voce Field Work-II
100 100 100 100
65 56 87 80
Total: 400 288 RESULT: I CLASS Principal Govt. Polytechnic for women Mangalore - 575 008 Signature of the Student.”
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9. From Annexure-C referred to above, it is clear that the same is signed by the
Principal. In all respects it gives the details of the marks obtained by the petitioner in
all the subjects in which she had appeared for the examination and passed the
examination. Clause 9.1 of the Notification relied upon by Sri NARAYANASWAMY
requires candidate to produce the marks card of all the years. The said clause reads as
follows:
10. Therefore, the only question that would arise for consideration is whether the
extract of marks card-Annexure-C produced by the petitioner can be for the purpose of
Clause 9.1 of the Gazette Notification dated 2nd July 1999 issued by the Commission
relied upon by Sri Narayanaswamy can be treated as a marks card. The object of
insisting on a candidate to produce the marks card is to prima facie satisfy before a
candidate is called for interview or invited to write the examination who has applied
for a post possesses the requisite qualification or not. The approach of the
Commission or the persons in charge of scrutinizing the application should not be to
disqualify the applicants on the basis of minor deficiencies or discrepancies in the
application or the furnishing of the particulars required. Once the candidate appears
before the Commission, he is bound to produce all the originals required by the
Commission. The wider the scope of selection, the Commission would have an
opportunity to select the best candidate available for service under the State. In this, I
should not be understood as having observed that if there is a serious defect in an
application or the non-furnishing of the marks card or a certificate which is required to
be considered by the Commission to decide the eligibility of a candidate or serious
deficiencies in furnishing of details required, should be ignored by the Commission
while considering the application of an applicant and inviting him either to write the
examination or for interview. The Commission while considering the application will
have to make a distinction between minor deficiencies in an application or the format
of certificate or the format of the marks card required to be produced and serious
defects. In the instant case, in my view the extract of marks card-Annexure-C
produced by the petitioner can be treated for the purpose of Clause 9.1 of the
Notification as a marks card which the petitioner was required to submit.
Presumably, it was so understood by the Commission and on that basis the petitioner
was called for interview which was earlier fixed on 1st December 1999 as per
Annexure-F; and thereafter as per Annexure-G dated 26th November 1999, the
petitioner was informed that the fresh date of interview would be notified to her. If the
Commission has not treated the Annexure-C as a marks card produced by the
petitioner which complies with the requirement of the Notification, I do not find any
one justifiable ground for the Commission to notify the petitioner to appear for an
364
interview fixed on 1st December 1999, and on cancellation of the interview so fixed to
notify the petitioner that the next date of interview would be informed to her.
Therefore, I am of the view that the extract of marks card Annexure-C produced by
the petitioner in the facts and circumstances of this case must be held as sufficient
compliance by the petitioner in terms of Clause 9.1 of the Notification. Even
otherwise, as rightly pointed out by Sri Shankar the Commission having acted upon
Annexure-C and having treated the application of the petitioner as a valid application
and called the petitioner for interview, as a valid application and called the petitioner
for interview, cannot at a later stage refuse to consider the claim of the petitioner for
selection to the post of Assistant Librarian. The defect if any, in the application
submitted by the petitioner in my view must be held to have been waived by the
Commission in the facts and circumstances of the case. Otherwise, as noticed by me
earlier, there is no reason for the Commission to invite the petitioner for the interview
earlier fixed. In the objection statement filed by the Commission has not offered any
explanation as to under what circumstances the petitioner was earlier called for
interview and what prompted the Commission at a later stage not to call the petitioner
for interview fixed on 13th January 2000. Under these circumstances, since the
petitioner was earlier called for interview acting upon the extract of marks card
produced by the petitioner, I am of the view that the Commission in the facts and
circumstances of the case must be stopped from coming forward with a plea that the
application filed by the petitioner was defective as she had not furnished by the
petitioner was defective as she had not furnished the marks card. It is not the case of
the Commission that the petitioner lacked the qualification prescribed on the last date
fixed for submission of the application. Even according to the Commission, the defect
is in the format of the marks card submitted by the petitioner. The certificate-
Annexure-D dated 24th November 1999 issued by the Principal of the Government
Polytechnic for Women, Mangalore, where the petitioner had studied shows that she
has secured first rank in Diploma in Library Science in the final year examination as
per Annexure-D. The said certificate reads as follows:-
“ GOVERNMENT OF KARNATAKA”
DEPARTMENT OF TECHNICAL EDUCATION
Office of the Principal No. WPM/40/A’99 Govt. Polytechnic for women Mangalore - 575 008 Date: 24-11-1999.
TO WHOM SO EVER IT MAY CONCERN: This is to certify that Kum. Nalini.K. D/o M.R. Lakshminarayana Rao has
secured 1st Rank in Diploma Course in Library & Information with Register No. 2432
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held in the month of April-May 1999, as per Secretary, Board of Technical
Examination Memo No. BTE/EAP/98 dtd: 30-7-99.
Principal Govt. Polytechnic for women
Mangalore - 575 008
To: Kum. Nalini K D/o M.R. Lakshminarayana Rao 11. As noticed by me earlier, by virtue of an interim order earlier granted by this
Court, the petitioner had already been interviewed. Under these circumstances, if the
case of the petitioner is allowed to be considered on merits, I am of the view the
Commission will not be put to any inconvenience or prejudice and the rights of the
third parties will not be affected in any manner. Therefore, I am of the view for the
reasons stated above, the petitioner is entitled for the relief sought for by her. In the
light of the discussion made above, the decisions relief upon by Sri Narayanaswamy,
in my view has no application to the facts of the present case. Further, in the light of
the above conclusion reached by me, I find it unnecessary to consider the first
submission of Sri Shankar.
Therefore, for the reasons given above, I make the following orders:-
(i) In the light of the discussion made above, this petition is allowed.
(ii) The respondent is directed to consider the claim of the petitioner
for appointment to the post of Assistant Librarian on the basis of the interview held on 13th January 2000 along with the other candidates who had appeared for the interview on merits and in accordance with law.
13. In terms stated above, this petition is allowed and disposed. However,
no order is made as to costs.
***
366
WRIT PETITION NOS. 9425, 10625, 11006, 11746 & 12651/1999 D.D. 23.2.2000
The Hon'ble Mr. Justice P.Vishwanatha Shetty K.Narasimha Murthy & Others - Petitioners Vs. Karnataka Public Service Commission - Respondent (A) Recruitment of Gazetted Probationers (Appointment by Competitive Examinations) Rules, 1997, Rule 7(1) – Constitution of India, Articles 14 and 16(1) – Recruitment of Gazetted Probationers – Eligibility prescribed for taking competitive Examination for – Rule prescribing that no candidate is eligible unless he possesses Bachelor Degree awarded by University or possesses equivalent qualification – Rejection, on basis of rule, of candidature of person who has secured higher qualification of Master Degree from open University, without Bachelor Degree – Rule, held, is unreasonable, arbitrary and has no nexus with object of selecting best of candidates – Since sole basis of selection is candidate's performance in competitive examination and interview and marks obtained by him in Bachelor Degree have no relevance in selection, there is no rationale in rejecting candidature of person with only Master Degree – Word "Bachelor" used in rule is liable to be struck down so that rule be read as "No candidate shall be eligible for recruitment unless he possesses a Degree awarded by a University established by Law in India or possesses an equivalent qualification" – Order of Commission rejecting candidature of person with Master Degree, on ground that he has no Bachelor Degree, held, is void and liable to be quashed.` (B) INTERPRETATION OF STATUTES – Word used in rule – Striking down of – Where word used in rule comes in way of achieving object of rule, word has to be struck down. Cases referred: 1. AIR 1976 SC 1697 State of Gujarat Vs. Chaturbhuj Maganlal 2. 1981(1) SLR 469 Karnataka Public Service Commission Vs. N.C.Hugar 3. AIR 1993 SC 929 – Y. Srinivasa Rao Vs. J.Veeraiah & Others 4. AIR 1993 SC 2285 – V.K.Sood Vs. Secretary, Civil Aviation ORDER Since the questions raised in these petitions are similar and identical, all these
petitions are taken up for final hearing together and disposed of by this common order.
2. The petitioners, in these petitions, were all applicants for recruitment to the
post of Gazetted Probationers Group-A and B in the services of the State. The
recruitment to the post of Gazetted Probationers is made as provided under the
provisions of the Karnataka Recruitment of Gazetted Probationers (Appointment by
Competitive Examinations) Rules, 1997 (hereinafter referred to as “the Rules”).
3. In these petitions, the petitioners have called in question the endorsement
issued to them by the Karnataka Public Service Commission at Bangalore (hereinafter
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referred to as “the Commission”), informing them that their applications for Gazetted
Probationers (Main) Examination were rejected as they had not enclosed Bachelor
Degree Marks Card and they had enclosed only Master’s Degree Certificate.
4. In Writ Petition No. 10625/99, the petitioner has prayed for striking down the
word “Bachelor” appearing in Rule-7 of the Rules.
5. The few facts, which are not in dispute and which are relevant for the disposal
of these petitions, may be stated as hereunder:
(a) All the petitioners have acquired Post Graduate qualification and possess the Post Graduate Degree issued by the University of Mysore. However, none of them possesses the basic degree qualification. The University of Mysore had introduced a Scheme known as “ Correspondence Course” wherein a candidate, even if he does not possess any basic Degree or other educational qualification, could directly appear for the Post Graduate Course; and if he passes the examination conducted by the University, he would be entitled for conferment of Post Graduate Degree. (b) Pursuant to the application filed by the petitioners for being considered to the post of Gazetted Probationers Group-A and B, the petitioners were called for preliminary examination held on 30th of August 1998. Thereafter, in the endorsements given to the petitioners, they were informed by the Commission that since they do not possess the basic Degree qualification, their applications were rejected. During the pendency of these petitions, this Court has passed an interim order directing the Commission to permit all the petitioners to appear for the main examination. Pursuant to the said direction given by this Court, all the petitioners have written the main examination. However, the result of some of the petitioners does not appear to have been announced. The Commission is yet to call the candidates who have passed the main examination, for interview.
6. Sriyuths S.V. Narasimhan, V.T. Rayareddy, M.Swayamprakash, M.R.
Shailendra, M.Sudhakar Pai and B.B. Bhajentri, learned Counsel appearing for the
petitioners in these petitions made two submissions. Firstly, they submitted that the
impugned endorsements issued by the Commission to the petitioners rejecting their
applications on the ground that since they do not possess the Bachelor Degree, they
are not eligible to be considered for appointment to the post of Gazetted Probationers
Group-A and B, are totally illegal and void in law. According to them, the
qualification prescribed under Rule-7 of the Rules that no candidate shall be eligible
for the recruitment under the Rules unless he possesses a Bachelor Degree awarded by
a University established by law in India or Possesses an equivalent qualification, must
be understood as prescribing the minimum qualification; and a person, who possesses
a higher Degree than the Bachelor Degree, even if he does not possess the basic
Bachelor Degree must be held to be possessing the requisite qualification prescribed in
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terms of Rule 7 of the Rules. Secondly, they submitted that if, for any reason,
Bachelor Degree, referred to in Rule-7 of the Rules, is to be understood as a pre-
requisite qualification; and even holding of Post Graduate or Doctorate Degree
without basic Bachelor Degree qualification, is not to be considered as a qualification
prescribed for being considered for the post of Gazetted Probationers Group-A and B,
the word “ Bachelor” referred to in Rule-7 of the Rules, requires to be declared as ultra
vires and void in law as being highly arbitrary, unreasonable, discriminatory and
violative of the rights guaranteed to the petitioners under Articles 14 and 16 (1) of the
Constitution of India. Elaborating this submission, they contended that the object of
the selection for the post of Gazetted Probationers Group-A and B being to pick up the
best candidates among large number of aspirants to the State Civil Services, the
instance on basic degree as a qualification in preference to the candidates who possess
higher academic qualification, like, Post Graduate and Doctorate, would be highly
unreasonable, arbitrary and discriminatory in nature and such a classification will not
be a reasonable classification and will not have any nexus with the object sought to be
achieved. They pointed out that the marks obtained in the Bachelor Degree is not to
be taken into consideration for the purpose of eligibility to appear for either the
preliminary or final examination prescribed under the Rules; and the qualification
prescribed under Rule-7 is only a minimum qualification to be considered for
eligibility to appear for the preliminary examination; and ultimately the selection is
required to be made only on the basis of the performance in the preliminary and final
examinations and also the marks obtained in the interview and on comparative
assessment of obtained in the interview and on comparative assessment of the merits
of the candidates; and therefore there is no rationale in insisting that the candidate
should possess the basic degree qualification to be eligible for being considered to
appear for the examinations. They also submitted that in so far as the selection to the
Indian Civil Service Examination (i.e., IAS., IPS., IRS., IFS., etc.) is concerned, the
Post Graduate Degree awarded by the University of Mysore is also considered as the
qualification prescribed for the purpose of Civil Services Examination. In this
connection, they drew my attention to communication dated 13th of February 1999, a
copy of which has been produced as Annexure-F in Writ Petition No. 17746/1999,
wherein the Under Secretary to the Union Public Service Commission has stated that
the Degree including the Post Graduate Degree awarded by the University of Mysore,
are acceptable for admission to the Civil Services Examination. The learned Counsel
also relied upon the Rules known as “ Karnataka Civil Services (Special Recruitment
of Scheduled Castes and Scheduled Tribes candidates to certain Group-A and Group-
B Posts) Rules, 1985, wherein the Post Graduate qualification is prescribed as the
basic qualification for recruitment to the post of Assistant Commissioner, Assistant
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Controller of State Accounts, Commercial Tax Officer, Treasury Officers etc. The
learned Counsel for the petitioners would further submit that when a Degree
qualification, like, Degree in Dental Science, Medicine and Engineering, is treated as
the basic qualification for being considered for appointment to the post of Gazetted
Probationers, there cannot be any rationale or principle in holding that the person who
possesses Post Graduate Degree or Doctorate Degree in the subjects, like, Economics,
History, Commerce, Statistics or Sociology, the knowledge of which will be of day to
day use for administrative services, is not eligible for appointment as Gazetted
Probationer. Therefore, they pointed out that Rule-7 of the Rules, which prescribes
Bachelor Degree as qualification for being considered for the post of Gazetted
Probationers, must be understood in the background of the post for which the
qualification is prescribed; and if it is so understood, there cannot be any doubt that
what is prescribed under Rule-7 of the Rules is only a minimum qualification of
Bachelor Degree and the persons who possess higher qualification like Post Graduate
Degree of Doctorate Degree, are not ineligible to be considered for the post of
Gazetted Probationers even if they do not have the basic Bachelor Degree
qualification. It is their submission that for any reason, if the Rules has to be given
strict interpretation as contended by the respondents, then the Rule requires to be
struck down as being violative of Articles 14 and 16 (1) of the Constitution of India;
and in such a situation where the Rule is required to be struck down, the Court would
normally place harmonious construction to the Rule and give effect to the object of the
Rule by reading down the Rule. In support of their submission that the case of the
petitioners having higher qualification cannot be ignored they relied upon the decision
of the Supreme Court in the case of Y. Srinivasa Rao Vs. J. Veerayya (AIR 1993 SC
929).
7. However, Sri Narayanaswamy, learned Counsel appearing for the
Commission, while strongly supporting the impugned endorsement issued by the
Commission, submitted that when the rule making authority, in its wisdom, has
provided in Rule-7 of the Rules, that a candidate should possess the basic Bachelor
Degree, it is not permissible for this Court while exercising its power under Article
226 of the Constitution of India to go into the wisdom of the rule making authority and
come to the conclusion that the higher degree possessed by a candidate without the
basic would also satisfy the requirement without the basic would also satisfy the
requirement of Rule-7 of the Rules. He submitted that the contents of the subject in
Bachelor Degree and Post Graduate Degree varies in as much as while large number
of subjects are taught at the Graduate level, at the Post Graduate level and Doctorate
level, specialization is made only in one subject. He further submitted that for the
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purpose of admission to the Bachelor Degree, the eligibility prescribed for the
Bachelor Degree is taken into account and all these are not taken into account when a
person acquires Post Graduate Degree, Sri Narayanaswamy also submitted that the
Commission cannot be found fault with for issuing the impugned endorsements as the
Commission has interpreted the Rule which states that the candidate should possess a
“ Bachelor Degree”. He also submitted that since the Bachelor Degree ahs not been
equated to the Post Graduate Degree, the Commission did not consider the Post
Graduate Degree obtained by the petitioners as satisfying the minimum qualification
prescribed. In support of his submissions, Sri Narayanaswamy relied upon a decision
of the Supreme Court in the case of V.K. Sood Vs. Secretary, Civil Aviation (AIR
1993 SC 2285) and that of a Full Bench of this Court in the case of Karnataka Public
Service Commission Vs. N.C. Hugar [1981 (1) SLR 469].
8. In the light of the rival contentions effectively advanced by the learned Counsel
appearing for the parties, two questions of considerable importance that would arise
for consideration in these petitions, are-
(1) Whether a candidate, who possesses a higher degree qualification than the Bachelor’s Degree qualification, but who does not possess the Bachelor Degree qualification in terms of Rule 7 of the Rules, is not qualified to be considered for appointment to the post of Gazetted Probationers Group-A and B?
(2) whether the words “ Bachelor Degree” in Rule-7 of the Rules require to be
struck down as ultra vires and void in law? 9. The Gazetted Probationers are recruited by the State for the purpose of State
Civil Services. It consists of Group-A and Group-B posts. Schedule-I given to the
Rules sets out various categories of Group-A and Group-B posts. Rules 4 and 9 of
the Rules provide for holding and conducting of the competitive examinations for
conducting of the Competitive examination for recruitment to the State Civil Services;
Rule-5 of the Rules prescribes the age limit for recruitment; Rule 6 of the Rules
provides that every candidate appearing for the examination, who is otherwise eligible,
would be permitted for not more than five attempts; and Rule 7 of the Rules prescribes
academic qualification and physical standard. Sub-rule (1) of Rule 7 of the Rules
provides that no candidate shall be eligible for recruitment under the Rules unless he
possesses a Bachelor Degree awarded by a University established by law in India or
Possesses an equivalent qualification. The said sub-rule reads as follows:
“ (1) No candidate shall be eligible for recruitment under these rules unless he
possesses a Bachelor Degree awarded by a University established by law in India or
Possesses an equivalent qualification.”
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Schedule-II given to the Rules provides for the Scheme of Examination. The scheme
of Examination prescribed provides for preliminary examination and main
examination. Preliminary examination consists of two papers of objective type i.e.,
multiple choice. Paper-I containing general studies, is of 150 marks and paper-II with
one subject to be selected from the list of optional subjects, is of 300 marks; in all 450
marks are prescribed for the preliminary examination. The main examination consists
of written examination and personality test. The written examination is in respect of
2100 marks. It consists of paper-I Kannada; Paper-II English; Papers-III and IV
General Studies of 300 marks for each paper; and papers-IV, V, VI, VII and VIII
relating to two subjects to be selected from the list of optional subject and each subject
will have two papers of 300 marks each. In so far as compulsory subjects are
concerned, unless a candidate secures 30 % in each of the papers and aggregate of 30
% in Kannada and English put together, he will not be eligible for being considered
for selection on merits and the marks obtained in the said papers will also not be taken
into account while assessing the comparative merit to the candidates. In other words,
minimum marks are prescribed for Kannada and English papers only for the purpose
of deciding their eligibility for appointment to the post of Gazetted Probationers
Group-A and B while assessing their comparative merit. When this being the scheme
of examination for the purpose of selection, the question that would arise for
consideration is that if a candidate possesses a Master’s Degree or Doctorate Degree,
can such a candidate be held to be not eligible for being considered for appointment to
the post of Gazetted Probationers if he does not possess the basic Bachelor Degree?
In my considered view, the answer should be in the negative. Merely because a
candidate possesses either a Bachelor Degree or a Master’s Degree, he will not be
automatically selected as a Gazetted Probationer. As noticed by me earlier, the basis
of the marks secured in the said examination has no relevance while making selection
on merits. Ultimately, a candidate has to write the examination as per the scheme of
the examination prescribed and establish his merits for being considered for
appointment to the post of Gazetted Probationers Group-A and B. The percentage of
marks obtained in Bachelor Degree is not the basis either for permitting the candidates
to write either the preliminary or main examination, or to consider their case on merits
along with the marks obtained in the written examination. The academic qualification
prescribed under Rule-7 of the Rules is only the qualification prescribed for being
eligible to be considered for appointment to the post of Gazetted Probationers. In this
background, I do not find any rationale or principle to disqualify persons who possess
higher Degree than that of a Bachelor Degree to write either the preliminary or main
examination for the post of Gazetted Probationers on the ground that they do not
372
possess Bachelor Degree. May be that the candidates who have acquired Post
Graduate Degree. May be that the candidates who have acquired Post Graduate
qualification, may not have the advantage of going to Colleges or Possessing requisite
qualification to enable themselves to get into Bachelor Degree as vehemently
contended by Sri Narayanaswamy. However, in my view that alone cannot be made
as a justification to take the view that only such of those candidates who have
Bachelor Degree, are only eligible for appointment as Gazetted Probationers. The
question is one of the natures of the academic qualification prescribed. Unless a
person has acquired necessary equipment, training, knowledge and academic
excellence prescribed to pass either the Post Graduate or Bachelor Degree, he cannot
acquire such a degree. In these cases, the Post Graduate Degree is given by the
University of Mysore. There is no distinction made in the matter of Post Graduate
Degree conferred on the regular students and to the students who have acquired Post
Graduate Degree qualification through correspondence course. It is also not in
dispute that Bachelor Degree is also awarded to those who pass the graduation through
correspondence course. Rule –7 of the Rules does not disqualify a person who has
acquired Bachelor Degree through correspondence course. Therefore, if a person,
who has secured Bachelor Degree in correspondence course, is eligible to be
considered for being appointed as Gazetted Probationers, there cannot be any
objection for considering a person who possesses the higher degree like Master’s
Degree or Doctorate Degree to be eligible to write the preliminary and main
examinations prescribed for appointment to the post of Gazetted Probationers. It is
not the case of the respondents that the Post Graduate qualification is in any way
inferior to the Degree qualification prescribed under Rule-7 of the Rules. In fact,
such a contention cannot also be advanced. Though these Rules are of the Year 1997,
the earlier Rules were made as far back as in the year 1966. Rule –7 of the Rules is
similar to the 1996 Rules. Therefore, may be, 30 years back, when the persons who
had acquired Master’s Degree or Doctorate Degree, were less in number, the rule
making authority was of the opinion that the Bachelor Degree would be the ideal
academic qualification that could be prescribed. When the people are able to achieve
higher academic qualification over the years on account of all round development of
the country and the State, and opportunity to acquire higher qualification is made
easier and possible, it is not possible to take the view that a candidate who possesses
higher qualification without the basic Bachelor Degree, should be treated as ineligible
for appearing for the preliminary and main examination for the purpose of
appointment to the post of Gazetted Probationers. No doubt, what should be the
qualification prescribed for a post is within the realm of the rule making authority.
But, if the qualification prescribed has absolutely no rationale with the object sought
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to be achieved and such a qualification results in discrimination or the classification
prescribed is unreasonable or arbitrary, certainly this Court is entitled to examine the
validity of such a rule with reference to examine the validity of such a rule with
reference to the parameter laid down under Article 14 and 16 (1) of the Constitution of
India. In the instant case, as observed by me earlier, the object of selection is to pick
up the candidates who are more suitable to the State Civil Services. Under these
circumstances, it will be highly unreasonable and discriminatory in nature to prevent
the persons, who have acquired higher qualification and who have academically
attained higher achievements and are superior, from taking up the preliminary and
main examinations for the post of Gazetted Probationers. The Rules which prescribe
for selection to the post, clearly indicate that selections are made only on the basis of
the comparative merit of the candidates based on their performance in the written
examination held and also the assessment of their suitability in the personality test
conducted. This is clear from Rule-II of the Rules and also the scheme of
examination prescribed, which is referred to earlier. The various subjects prescribed
both for preliminary examination and main examination which consist of written and
personality test, provide for the mechanism to test the comparative merit and
suitability of the candidates for appointment as Gazetted Probationers. When there
are large number of applicants to the post, unless a candidate secures fairly high
percentage of marks both in the written examination and in the personality test, he has
no hope of being appointed as a Gazetted Probationers. Therefore, the contents of the
study of the subjects by a candidate only in Bachelor Degree, in my view, has no
bearing and are not relevant to assess the comparative merit of a candidate. The
study of the subjects prescribed for Bachelor Degree, Master Degree or Doctorate will
only help a candidate to acquire knowledge and competence. As observed by me
earlier, the basis for selection is the performance both in the written examination
conducted and the personality test held. Further, as pointed out by the learned
Counsel for the petitioners, if a candidate who has secured Degree in Dental Science is
eligible to write the preliminary and main examinations for the post of Gazetted
Probationers, it does not appeal to any reason as to why a Post Graduate with a First
Class or a Doctorate Degree in Economics or Statistics or History with high academic
distinction should be treated as not qualified to write the said examinations.
Therefore, in my view, Rule-7 of the Rules must be understood as prescribing the
Bachelor Degree as the minimum qualification for being eligible for selection to the
post of Gazetted Probationers. Otherwise, the Rule requires to be struck down as
being highly arbitrary, unreasonable, discriminatory in nature and violative of the right
guaranteed to the petitioners under Article 14 of the Constitution of India. In my
view, the insistence on the minimum qualification of Bachelor Degree, even in the
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case of candidates who possess Post Graduate Degree of Doctorate, has no nexus with
the object sought to be achieved. However, it is well settled rule of construction as
laid down by the Supreme Court in the case of State of Gujarat Vs. Chaturbhuj “ that
where the language of a statutory provision is susceptible of two interpretations, the
one which promotes the object of the provision, comports best with its purpose and
preserves its smooth working, should be chosen in preference to the other which
introduces inconvenience and uncertainty in the working of the system. This rule will
apply in full force where the provision confers ample discretion on the Government
for a specific purpose to enable it to bring about an effective result”. Therefore, it is
clear that the endeavor of the Court should be normally to save the rule by interpreting
the rule in a way it serves the purpose and object of the rule. Therefore, in my view,
if Rule-7 of the Rules is interpreted and understood as to mean that a candidate who
possesses higher degree qualification, like, the Post Graduate or Doctorate, is eligible
to write the examination, the rule can be sustained even without striking down the
word “Bachelor”. However, in the instant case, in my view, even if the word
‘Bachelor’ is struck down, it will not affect in any manner the proper construction or
reading of the rule or cause damage to the meaning that could be given to the rule; and
it will not result in any incongruous situation or defeat the object of the rule. On the
other hand, striking down of the word ‘Bachelor’ appearing in Ruel-7 of the Rules,
would make the qualification prescribed more clear and understandable. The
principle of harmonious construction of the rule and reading down of the rule, need
not be applied in the present situation. If the word ‘Bachelor’ is struck down, a
person, who possesses a Degree whether it is a Bachelor Degree, Master Degree or
Doctorate Degree will be eligible to be considered for appointment to the post of
Gazetted Probationers and consequently, eligible to write the preliminary and main
examinations. Therefore, I am of the view that if would be more appropriate, in the
instant case, to strike down the word “Bachelor” appearing in Rule-7 of the Rules
instead of reading down the rule. If that is done, the rule will be workable and it will
serve the purpose and object of the qualification prescribed.
10. The only other question is whether the principle laid down by the Full Bench of
this Court in the case of N.C. Hugar (supra) strongly relied upon by Sri
Narayanaswamy would apply to the present case? In my considered view, the
principle laid down in the case of N.C. Hugar (supra) has no application to the present
case. As it could be seen from the discussion in the said case; the majority of the
judges took the view that a candidates should possess the minimum educational
qualification prescribed for the post of Technical Assistant in the Department of
Public Libraries i.e., a Certificate in Library Science of the Government Library
375
Training School, Bangalore, or Diploma in Library Science of the Women’s
Polytechnic, Bangalore, in the light of Rule-5 of the Karnataka State Civil Services
(Direct Recruitment by Selection) Rules, 1973, which provided the percentage of
marks secured in the qualifying examination as the basis for inviting a candidate for
interview. Rule-5 of the said Rules required that for the purpose of inviting
candidates for interview for the purpose of selection to the post of Technical
Assistants, the Selecting Authority should prepare a list of names of candidates on the
basis of percentage of total marks secured in the qualifying examination in the order of
merits and the candidates should be called for interview on the basis of the merit list
so prepared. This is clear from the observations made in Paragraphs 5, 6, and 7 of the
judgment, which read as hereunder:
“5. …..Rule 4 of the said Selection Rules provides that recruitment shall be made on
the basis of the percentage of total marks secured in the qualifying examination as
determined under R-5 and of the marks secured at the interview under Rule 6 by the
Selection Authority Eligibility of candidates for interview is regulated by Rule 5 of the
Selection Rules. Relevant portions of Sub-rules (1) and (3) of Rule 5 read as
follows:-
“5. Eligibility of candidates for the interview:-
(1) For purposes of selection of candidates for the interview, the selecting authority
shall prepare a list of names of candidates on the basis of the percentage of total marks
secured in the qualifying examination in the order of merit and if two or more
candidates have secured equal percentage of total marks in the qualifying examination,
the order of merit in respect of such candidates shall be fixed on the basis of their age,
the person or persons older in age, being placed higher in the order of merit. From
among the candidates whose names are included in such list, as far as may be, such
number of candidates as is in the order of merit, shall be eligible for the interview:
Provided that where the rules of recruitment to any cadre or post prescribe any
preferential or desirable qualification (whether academic or otherwise), then all
candidates possessing such qualifications shall also be eligible for interview
irrespective of the marks obtained by them in the qualifying examination, subject to
the condition that the number of such candidates eligible for interview shall not exceed
10 times the number of vacancies notified.
(2) XX XX XX XX
(3) For the purposes of this rule:-
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(a) ‘qualifying examination’ means the examination or examinations prescribed as
the minimum qualification required for appointment in the Rules of recruitment to the
cadre or post concerned.
(b) where the qualifying examination consists of more than one examination the
percentage of total marks secured in the qualifying examination shall be the average of
the percentage of total marks secured in those examination
(c) whether different qualifying examinations have been prescribed alternatively in
the rules of recruitment applicable to a post or category of posts and a candidate has
passed more than the one such qualifying examinations the percentage of total marks
obtained in the qualifying examination shall be the percentage of total marks obtained
in such qualifying examination in which he has obtained higher percentage of total
marks.
(d) where the qualifying examination prescribed is a Doctorate obtained on the basis
of thesis submitted by the candidate, the percentage of total marks secured by the
candidate in the qualifying examination shall be deemed to be ninety five.
Rule 6 provides that the selecting authority shall interview the eligible candidates
selected under Rule 5 and award marks on the basis of their performance in the
interview. Sub-rule (1) of Rule 7 provides that the selecting authority shall on the
basis of the aggregate of the percentage of the total marks secured in the qualifying
examination as determined under rule 5 and of the marks secured at the interview
under Rule 6 and taking into consideration the orders in force relating to reservation of
posts of Scheduled Castes, Scheduled Tribes, Backward Tribes and other Backward
Classes prepare in the order of merit list of candidates eligible for appointment to the
cadre or post. R.8 (1) provides that candidates whose names are included in the list
published under sub-rule (1) of the Rule 7 may be appointed by the appointing
authority in the vacancies in the particular cadre or post in the order in which the
names are found in the list after satisfying itself after such enquiry as may be
considered necessary that each such candidate is suitable in all respects for
appointment, to a post in the cadre.
6. As provided in Rule 5 (3) (a) of the Selection Rules, qualifying examination
means the examination or examinations prescribed as the minimum qualification
required for appointment in the Rules of Recruitment to the cadre or post concerned.
Where the qualifying examination consists or more than one examination, the
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selecting authority is required to make the selection on the basis of the aggregate of
the percentage of the total marks secured by the candidate in all those examinations
and the marks secured at the interview under Rule 6 of the Selection Rules. Where
different qualifying examinations are prescribed alternatively and a candidate has
passed more than one such examination, the percentage of the total marks obtained in
the qualifying examination shall be the percentage of the total marks obtained in such
qualifying examination in which he has obtained the highest percentage of total marks
as provided under Rule 5 (3) (c) of the Selection Rules.
7. In respect of some posts the rule making authority after prescribing the
qualification for the posts has further prescribed certain qualifications as preferential
or desirable qualifications. When that is done, proviso to R.5 (1) of the Karnataka
State Civil Services (Direct Recruitment by Selection) Rules, 1973, comes into play
which provides that the candidates possessing such qualifications shall also be eligible
for interview irrespective of the marks obtained by them in the qualifying
examination, subject to the condition that the number of such candidates eligible for
interview shall not exceed 10 times the number of vacancies notified. Having regard
to the scheme of the Selection Rules so far discussed it is clear that the question as to
whether a particular qualification is higher than the minimum qualification prescribed
for a post is not at all relevant in as much as marks secured at such higher examination
cannot be taken into consideration either for determining eligibility of the candidate
for interview or for final selection for appointment” have no bearing to the facts of the
present case and are of any assistance to him to support his contentions.
10. In the light of the discussion made above, I make the following:
ORDER
(I) The word “ Bachelor” appearing in Rule-7 of the Karnataka Recruitment of
Gazetted Probationers (Appointment by Competitive Examinations) Rules, 1997, is
ultra vires and void in law and, therefore, is struck down.
(ii) The endorsement issued to each of the petitioners notifying them that they are
not eligible to appear for the preliminary and main examination for the post of
Gazetted Probationers Group-A and B on the ground that they do not possess the
Bachelor Degree qualification, is hereby quashed.
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(iii) The Karnataka Public Service Commission is directed to announce the results of
the main examination of such of those petitioners whose results have not yet been
announced.
(iv) The Karnataka Public Service Commission is directed to consider the case of
the petitioners for appointment to the post of Gazetted Probationers Group-A and B on
merits and in accordance with law and the Rules governing the selection.
11. In terms stated above, these petitions are allowed and disposed of. Rule issued
is made absolute.
12. Sri K. Nagaraj, learned Addl. Government Advocate is permitted to file his
memo of appearance within four weeks from today.
***
379
WRIT APPEAL No.7694/1999 D.D. 20.3.2000
Hon'ble Mr. Chief Justice Bhaskar Rao Hon'ble Mrs. Justice Manjula Chellur
Dr. Shakunthala K S – Appellant Vs. K.P.S.C. – Respondent
Recruitment to the post of Lecturers in Medical Colleges for various subjects As per the instructions, a candidate had to reveal the vital information in the
application itself particularly, the discipline or the subject in which she was interested to apply for the post of Lecturer. Against the column 'Name of the Post' and 'Department' the appellant only mentioned as 'Lecturer for Medical College' instead of stating Lecturer in 'Anesthesiology' though she mentioned that fact on the envelope in which the application was submitted. The application was rejected as defective. Writ Petition filed by the petitioner was rejected. The Division Bench confirmed the order of the learned Single Judge by dismissing the Appeal.
J U D G M E N T
MANJULA CHELLUR, J:
This writ appeal is filed challenging the orders of the learned Single Judge in
WP No. 40192/99 dated 18.11.1999.
2. The main question urged before us by the learned counsel for the appellant is
that an inadvertant omission to make mention of the subject for which the appellant
had applied to the respondent – Karnataka Public Service Commission, in the
application submitted by her in the prescribed form, cannot be fatal to her candidature
and denied of her right for public employment as guaranteed under Article 14 and
16(1) of the Constitution of India, especially when she belongs to a reserve category.
It is further urged that she had specifically mentioned the subject for which she was
applying on the envelope, in which the said application was sent. Therefore,
according to the learned counsel for the appellant, when once she has strictly complied
with the directions in the Gezette notification, her application ought not to has been
rejected by the respondent and she ought to have been called for interview for the post
of Lecturer in the Department of Anesthesiology. Annexure-A is the notification
dated 08.06.1999 for 133 posts of Lecturers in Medical Colleges for various subjects
in the Department. The instructions published in the Gazette dated 08.06.99 to the
benefit of candidates clearly mentions at instruction No.8.7 as under:-
"On the envelope in which the application is submitted the name of the post [here mention the name of the post] should be unfailingly written. If the envelope is not so super scribed with the name of the subject such applications will be rejected."
380
Therefore, according to the learned Counsel for the appellant when one the
envelope mentions the discipline for which post she has applied for, there was no need
to mention the discipline in the application form. Hence, it was contended that the
view taken by the learned Single Judge is hyper technical and the same is liable to be
set aside.
3. The learned Counsel for the respondent contended that when there was
advertisement for 133 Lecturer posts in various subjects and especially when there
was an option to apply for one or more posts by submitting separate applications for
each subject, the candidate ought to have mentioned clearly the discipline or the
subject in which she was interested to apply for the post of Lecturer. As per the
instructions the candidate had to reveal vital information in the application itself. The
envelope in which the application was sent was not part and parcel of the application.
Therefore the appellant did not get any right to participate in the recruitment process.
4. Admittedly, the application contains detailed instructions to be followed by the
candidate and how application form should be filled [the candidate has to fill it in
her/his own handwriting after going through the instructions to the candidates annexed
to the application form]. On perusal of the application the appellant has to mention
against the columns Name of the Post and 'Department', but in the application the
appellant has written as 'Lecturer for Medical College', instead of stating as 'Lecturer'
against the first column and 'Anesthesiology' against the second column. The
acknowledgement for submission of the application, which is retained by the
Commission also states that the application is for the post of Lecturer in the Medical
College. The application did not reveal particulars of discipline or subject, i.e.,
Anesthesiology. Definitely the application is defective. It is well settled law that if
there is violation of the instructions regarding the manner of filling the application and
if the application is incomplete, the concerned authorities have right to reject the said
application. Therefore, when the application of the appellant was found defective, the
Commission has rejected the said application and such action is proper and justified.
5. No doubt, on the envelope it is mentioned as 'Lecturer for Medical College,
Department of Anesthesiology'. The acknowledgement form, part of the application
also says 'Medical College Lecturer, Anesthesiology. It is significant to notice here
that the original acknowledgement retained by the appellant has specifically
mentioned the subject or Department, but the acknowledgement [Duplicate] which is
part of the original application do not mention the discipline or the subject as
Anesthesiology Department. The appellant herself filled acknowledgement both
381
original and the duplicate. The duplicate should definitely reflect whatever really
mentioned in the original. We are not required to consider the papers retained by the
applicant but we have to see whether the Commission has taken into consideration the
proper documents. The Commission is required to consider the original application
and the acknowledgement sheet submitted to it, which do not refer to Department of
Anesthesiology. Therefore, mere mentioning of Department of Anesthesiology on the
cover will definitely not cure the defect in the application. This observation of the
learned Single Judge is proper and correct.
6. The learned Counsel for the appellant argued that before the time stipulated for
the interview of the candidate to the post of Lecturer in the Department of
Anesthesiology, the appellant approached the respondent – Commission clarifying that
her application was for the post of Anesthesiology and therefore she should be called
for interview and her application should not be rejected. It is not the question of
causing prejudice to the Commission or not by giving such an opportunity to the
appellant. When the application is defective and the Commission was right in
rejecting it, this authority cannot be questioned. We only have to see whether the
Commission has acted fairly or whether it acted arbitrarily and unreasonably while
rejecting the application. Such an unreasonableness is not at all established by the
appellant. The appellant, who was post Graduate in the subject of Anesthesiology, did
not fill application in proper manner. On sympathetic grounds the learned Single
Judge had even suggested that whether the Commission could condone the lapse
committed in filling the application by the appellant. However, for administrative
reasons the Commission was not in a position to do so. It is also necessary to note that
if there is condonation of lapses of this nature, it would open the floodgates and
thousands of other applicants who have given defective applications will be seeking
such concession and the Commission may not be able to function effectively in
processing thousands of applications.
7. In the result, we are of the opinion that there is no need to interfere with the
order of the learned Single Judge. The appeal is accordingly dismissed.
***
382
Writ Petition No.15384/1998 D.D. 28.3.2000
Hon'ble Mr. Chief Justice Y.Bhaskar Rao Hon'ble Mrs. Justice Manjula Chellur
Pushpa.A. – Petitioner Vs. K.P.S.C. & Others – Respondents Recruitment to the post of Junior Training Officer (Drawing & Maths) Petitioner claimed reservation under Category-I enclosing copy of Caste Certificate dated 26.12.94. At the time of interview the petitioner did not produce the original of Caste Certificate dated 26.12.94 but produced a fresh Caste Certificate dated 13.1.97. The Commission rejected her claim for reservation under Category-I and treated her under G.M. category and she was not selected. Respondent No.3 who has secured 72.86% as against 77.25% secured by the petitioner was selected under Category-I. The petitioner approached KAT but her application was rejected. The High Court in view of the fact that the petitioner did not inform the Commission that she lost the original Caste Certificate dated 26.12.94 and as the fresh Caste Certificate dated 13.1.97 was obtained after the last date fixed for receipt of applications, dismissed the writ petition.
J U D G M E N T
MANJULA CHELLUR, J:
This petition is filed by the petitioner under Articles 226 and 227 of the
Constitution of India, sought for the following relief's:
(1) To set aside the order of the Hon'ble Tribunal dated 21.07.1997 in A. No. 1131/97 (Annexure-M) and the order dated 20.02.1998 in Review Application No. 235/97 (Annexure-P).
(2) To quash the endorsement No.R(2)2606/96-97/PSC dtd 27.01.1997 of the 1st respondent (Annexure–J) and also the selection of the 3rd respondent in the impugned notification dated 25.01.1997 (Annexure-K)
(3) To issue a writ of mandamus directing the 1st respondent to consider the petitioner's claim for selection in the vacancy reserved for Category-I of the Backward Classes and select her, and
(4) To pass such other order or direction as this Hon'ble Court deems fit in the facts and circumstances of the case including an order for award of cost.
2. In response to the advertisement of the 1st respondent in Notification No. RTU
95 dtd 05.07.1995 for the recruitment to the posts of Junior Training Officers at
Directorate of Employment and Training, Government of Karnataka, wherein
applications for nine posts belonging to the cadre of Junior Training Officer (Drawing
& Maths) were called for, the writ petitioner applied for such post. Amongst several
classifications under Category-I of BCs one post was reserved. The petitioner had
required qualification of SSLC and Diploma in Electrical Engineering. She applied
for the selection enclosing copy of the Caste Certificate showing as "Golla" Category-
I of the Backward Classes.
383
3. She was asked to attend the interview on 21.01.1997 indicating her candidature
under Category-I of Backward Classes. Accordingly, she attended the interview and
produced and original Backward Class Category-I certificate dated 13.01.1997 instead
of the one dated 31.10.1994. Subsequently, the 1st respondent sent an endorsement
dated 27.01.1997 showing her candidature as a General candidate for the reason that
the correct original certificate of Category –I of Backward Classes was not produced.
Later the selected candidates list was published on the notice board which showed that
the 3rd respondent as the selected candidate. As a matter of fact the third respondent
secured marks at 72.86% much less than the marks secured by the petitioner which is
at 77.26%.
4. Aggrieved by the said selection she approached the Tribunal the fifth
respondent herein and the application was disposed of by its order dated 21.07.1997
observing that the petitioner failing to produce the caste certificate either that of the
original of the one which was annexed to the application or the caste certificate dated
13.01.1997. When this was factually incorrect, she filed Review Application No.
235/97 seeking review of the order of the Tribunal after obtaining endorsement from
the 1st respondent that she had produced original caste certificate dated 13.01.1997
instead caste certificate of Category-I dated 26.12.1994. However, Review
Application was rejected making certain observations. Aggrieved by the same, the
present writ petition is filed.
5. The 1st respondent filed objection statement contending that the qualification
prescribed for the post was SSLC, National Trade Certificate or National
Apprenticeship Certificate or Diploma in the appropriate branch in trade concerned
and must have not less than three years of experience including the period of training
of apprenticeship. Out of 239 posts of Junior Training Officers 9 posts were
categorised for Trade and a different classifications Category-I had one post.
Enclosing Xerox copy of the Reservation Certificate, the writ petitioner sent the
application claiming reservation of Category-I 'Golla'. During the interview on
20.01.1997 she was unable to produce the original of Category-I certificate dated
26.12.1994. Instead she had submitted a fresh reservation certificate dated
13.01.1997. Therefore rejecting her claim for reservation of Category-I her
candidature was treated for general merit.
6. As per the notice for interview, all the candidates were required to produce all
the original certificates at the time of interview and they were also made to know that
384
failure to produce such originals will make the candidates ineligible for the interview.
Inspite of it, she was not able to produce the original reservation certificate dated
26.12.1994. Therefore, she was taken as general merit candidate. Even under general
merit category she was not eligible for selection in view of the fact that the percentage
of her marks was much less than the last candidate selected under General Merit
Category.
7. The main contention of the writ petitioner is that at the time of interview she
could not produce the original certificate dated 26.12.1994 since it was misplaced and
that it was not available immediately and therefore she obtained fresh certificate dated
13.01.1997 and produced the same at the time of interview. A notice was sent by the
1st respondent calling upon her to attend the interview which is at Annexure-G i.e,
dated 07.01.1997. Admittedly, subsequent original reservation certificate is dated
13.01.1997. Admittedly, along with the application she had enclosed Xerox copy of
the caste certificate of Category-I dated 26.12.1994. It is not the case of the writ
petitioner that subsequent to submission of application for the selection of the post
enclosing xerox copy of the reservation certificate she had intimated that the original
is lost and she would be sending the fresh application. Except submitting subsequent
reservation certificate dated 13.01.1997 on the date of interview i.e., 21.01.1997 she
has not even moved her little finger in this respect. No doubt, she has the required
qualification of SSLC and also Diploma Examination with First Class and High
Second Class respectively. She further contends that she is more merited person than
the 3rd respondent herein who has secured 72.86 against the petitioner's percentage of
77.25. Admittedly, the writ petitioner was not considered under Category-I 'Golla'. It
is also seen that the 3rd respondent is selected under Category – I for the post of Junior
Training Officer as she got the higher marks under that group. The contention of the
petitioner as stated above that she could not produce the original certificate dated
26.12.1994 as it was misplaced and was not available immediately will not ensure to
her benefit in the eye of law. Instead of producing the original certificate dated
26.12.1994 she has produced fresh certificate dated 13.01.1997. This certificate dated
13.01.1997 will not take place or will not be equivalent to the original certificate dated
26.12.1994. We have to see whether the writ petitioner had complied with the
condition notified in the Notification calling for the post of Junior Training Officer
and also other conditions stipulated in the call letter. The first respondent would have
received hundreds of applications and it has to peruse and see whether the candidates
have produced all the documents in support of their previous statement regarding
qualification and reservation as relief by him or her. This has to be done at the time of
selection process. If any of the candidate fails to support previous statement regarding
385
qualification and reservation as relief by him or her. This has to be done at the time of
selection process. If any of the candidates fails to support previous statement
regarding the reservation or qualification whenever they have claimed eligibility of
reservation the first respondent would be justified in rejecting such applications. Only
question we have to see in whether the writ petitioner has a right whatsoever to claim
that the reservation or caste certificate dated 13.01.1997 would be a substitute of the
original reservation certificate dated 26.12.1994 on which she founded her claim of
reservation. In the matter of appointment, time and again it is said that the candidates
have to comply with the specific stipulations while claiming reservation or with regard
to the qualifications. Any laches on part would definitely results in rejecting the
application. In such a situation, one cannot claim as a matter of right sympathy or
equity. As already discussed above, unless the writ petitioner has made out justifiable
ground or cause for considering her case for Category-I this Court cannot come to her
rescue. The 1st respondent while considering her case for Category-I or General Merit
at the time of selection process or the Tribunal while considering her application or
review application have looked into the matter from all the angles. Therefore, the writ
petitioner has not made out a case to give her the relief she has sought for.
8. At the time of argument it was submitted that the 3rd respondent who is
selected and appointed in Category-I as the last candidate in the said Category has
resigned on 04.06.1998 from the said post and therefore the case of the writ petitioner
could be considered. It is not the case of the first respondent herein that there was no
vacancy in Category-I. The application of the writ petitioner was rejected on the
ground that she did not comply with the conditions stipulated. Under the
circumstances, the fact of a vacancy now under Category-I in the category of Junior
Training Officer will not come to the aid of the writ petitioner.
9. Hence, the writ petition is rejected.
***
386
Writ Petition No.14448/1999 D.D. 5.6.2000
Hon'ble Mr. Chief Justice Y.Bhaskar Rao Hon'ble Mrs. Justice Manjula Chellur
D.S.Chandrakanth – Petitioner Vs. K.P.S.C. & Others – Respondents
Recruitment to Gazetted Probationers Group A & B posts pursuant to notification dated 30.4.93.
During revaluation of the Kannada paper of the petitioner it was found that the petitioner had substituted additional answer books 2, 3 and 4. After holding inquiry, the candidature of the petitioner was cancelled besides debarring him from the said examination for examination mal-practice. The application filed by the petitioner before KAT was dismissed. The High Court in view of the fact that the inquiry was held after giving fair opportunity of being heard to the petitioner held that there was application of mind on the part of the concerned authorities and consequently, dismissed the writ petition.
Cases referred: 1. 1999 (8) SCC 91 – R.S. Saini Vs. State of Punjab & Others 2. ATJ 2000 (1) 171 – The High Court of Judicature at Bombay through its Registrar Vs. Shashikant S.Patil & Another
O R D E R
MANJULA CHELLUR, J:
This petition is filed by the petitioner herein against respondents-1 and 2 to
quash the order in Application No. 1890/97 passed by the Karnataka Administrative
Tribunal, to direct the 1st respondent to declare the results of the petitioner, to direct
the respondents to consider the case of the petitioner for selection and appointment on
merits to the post of Gazetted Probationers Class I and II and in the alternative
recommend the name of the petitioner for the appointment to the 2nd respondent as
additional candidate selected in the selection process.
2. The facts that lead to the filing of this writ petition in brief are narrated as
under.
In pursuance of the notification dated 30.04.1993 issued by the 1st respondent
for the post of Class-I and II, he appeared for the examination after obtaining the hall
ticket. The petitioner has excellently done well in the examinations and the results
were also published wherein he secured 679 marks in Group A and 546 marks in
Group B. Revaluation was done on the directions of the Tribunal. During the
revaluation so far as the Kannada paper of the petitioner is concerned, the revaluer
387
raised some objections. Accordingly, the Commission cancelled the candidature of the
petitioner by a notification on the notice board. An application was filed in
Application No. 4983/96 on the Tribunal which was allowed on 19.09.1996 directing
the 1st respondent to hold fresh enquiry after giving an opportunity to the petitioner.
Accordingly, article of charge was served on the petitioner and the same was
explained by him. After holding an inquiry, the inquiry reported was submitted by the
inquiry officer to the 1st respondent which was accepted, by the 1st respondent. The 1st
respondent further debarred the petitioner for the Gazetted Probationer Examination of
1988-93, apart from canceling his candidature. Again he approached the Tribunal and
the application was dismissed by an order dated 18.02.1999. It is submitted, to have
an efficacious remedy he has filed the writ petition challenging the order passed by the
Tribunal on the ground that the finding of the Tribunal that it can look into the
procedural aspect of the matter in a departmental enquiry but it failed to notice that it
was not a departmental enquiry. The Tribunal ought to have re-appreciated the facts.
3. The Tribunal failed to take into consideration that the 1st respondent was not
able to establish that the answer papers available with them are not the answer papers
belonging to the 1st respondent. The punishment imposed attaches stigma on the
career of the petitioner. While looking into the facts, the entire evidence has to be
looked into and not only a portion of it. Even otherwise the order passed by the 1st
respondent is against the directions of the Tribunal because the Tribunal gave a
direction to furnish an inquiry report after it was completed so that the petitioner could
submit his reply. It is further alleged that the article of charges are different from the
inquiry held in that regard. The allegation regarding change in ink is totally false and
incorrect so also with regard to the non availability of signature of the Invigilator on
the examination sheets. The Tribunal failed to note that there was no roll to play by
the petitioner. The findings of the Inquiry Officer regard the quality of the answer and
so also answer written earlier and scored of was not properly considered. The
petitioner is a M.Sc., graduate and is capable of answering all the questions. The
respondents have taken the issue very lightly and the petitioner is punished for no fault
of him. No mal-practice or misconduct is committed by the petitioner as alleged. The
entire procedure adopted is illegal and contrary to law.
4. The 1st respondent has filed objection statement contending that the petition is
un-sustainable both on facts and law. It admits the decision to cancel the valuation
done and the revaluation of the papers once again pertaining to the examinations held
in the month of July and September 1993. The respondent submits that during the
valuation process on 29.07.1995 the answer scripts pertaining to the subject Kannada
388
and Additional Examiner found certain contrast and discrepancies between the main
and the first additional answer books 2,3 and 4 on the other hand pertaining to the
register No. 87504 i.e., the petitioner. The factual report with remarks was given to
the Chief Examiner. Then the Secretary conducted the inquiry in accordance with law
and finally the petitioner was debarred from the candidature. This was challenged in
Application No. 4993/96 which was disposed of with a direction to hold fresh inquiry
after giving one more opportunity to the petitioner to face charges. Accordingly, the
fresh inquiry was conducted in accordance with law and on the basis of the report, the
Commission cancelled the candidature of the petitioner and also debarred from taking
examination between 1988-93. On the basis of material during the inquiry the
inquiring Authority held that there is abundant material on record to draw irresistible
inference that the petitioner has done such an act. The article of charge and the
inquiry into the charges are one and the same. For the first time the petitioner has
taken a contention that there is no rule of procedure governing the field to sign the
additional sheets. No where such suggestion was made to PW1 in the inquiry. The 1st
respondent has based its decision on legal and factual aspects. Therefore the rejection
of the application by the Tribunal is justified. Admittedly, the applicant appeared for
the cost of gazetted probationers held during July and September 1993. Though
initially the results were announced declaring the marks of the candidates including
the petitioner so far as Group A and subsequently on the decision of the Commission
the revaluation was done. During the said revaluation the additional Valuer
Shivakumara Swamy, gave a report to the Commission revealing that there are vast
discrepancies and contrast between the main an first additional answer books on one
hand and the additional answer books 2,3 and 4 on the other hand so far as the
petitioner is concerned. Subsequent to the order of the Tribunal in Application No.
4993/96 article of charges and the statement of imputation were served. The specific
charge was that the petitioner substituted additional answer books, 2,3, and 4 which
were supplied to him in the examination hall pertaining to Kannada subject. It further
says the answer books 2,3 and 4 were not written in the examination hall during
examination and therefore, the petitioner has committed mal practice which amounts
to mis-conduct under Rule 20 of the Karnataka Civil Services (General Recruitment)
Rules 1977. In the statement of imputation it was said that the quality of the level of
answers in the additional sheets 2,3 and 4 on comparing with the main and first
additional answer book there is vast, wide variation and contrast with regard to quality
of answers in writing, in expression of ideas, in ink movement and speed of writing
alleged to in between the two the two sets. Under Rule 20 of the Karnataka Civil
Services (General Recruitment) Rules 1977 using or attempting to use unfair means in
an examination for purposes of recruitment or otherwise resorting to any other
389
irregular or improper means in connection with the recruitment is also misconduct. It
is the contention of the Commission that the additional answer books 2,3 and 4
pertaining to Kannada subject of the petitioner were not at all supplied to him in the
examination hall during the course of examination. The Commission need not go or
establish now this was done by the petitioner. If at all any such act is done, it would
be within the exclusive knowledge of the person who commits such guilt as to how,
where, when the under what circumstances such guilt was committed. The KPSC
Official Memorandum Para-2G clearly defines that inserting or substituting in the
answer scripts or sheets amounts to mal-practice. The Commission which has the
power to conduct the examination also has the power to disqualify or debar a
candidate who uses unfair means or method or practice connected with the said
examination. The charge memo is clear with regard to the article of charge and
statement of imputation.
5. After holding the inquiry after giving opportunity to the petitioner herein it was
held that the answers found in additional sheets 2,3 and 4 were never written in the
examination hall during the course of examination. They were not the additional
sheets supplied to the petitioner in the examination hall and they are substitution for
the additional answer books 2,3 and 4 that were supplied to him in the examination
hall. Such conclusion was drawn after discussing at length all the facts and material
before the Inquiring Authority. The petitioner was given opportunity of participation
in all the proceedings before the Inquiring Authority. This inquiry was done as per the
direction in Application No. 4993/96. All the issues with regard to non availability of
signature of the Invigilator on the additional sheets, answers written earlier and scored
off later, answer which were written in excellent way in the additional sheets when
compared to the main and first additional sheets are all discussed and considered by
the Inquiry Officer. With this background, the Court has to now consider whether
there is possibility to agree with the contentions of the petitioner in the writ petition.
The following decisions are relied upon by the Court:
1) 1999(8) SCC P.91 (R.S. SAINI –Vs. – STATE OF PUNJAB & OTHERS).
2) Administrative Totals Judgments (2000(1) P.171 (THE
HIGH COURT OF JUDICATURE AT BOMBAY through its Registrar Vs. SHASHIKANT S. PATIL & ANOTHER)
In 1999(8) SCC P.91 their Lordships have held as under:
" High Court while exercising writ jurisdiction does not reverse a finding of inquiring authority on the ground that evidence adduced before it is insufficient. If there is some evidence to reasonably support conclusions of inquiring authority, it is not the function of the Court to review evidence and to arrive at its own independent finding. The
390
inquiring authority is the sole Judge of the fact so long as there is some legal evidence to substantiate its findings. Adequacy or reliability of evidence is not a matter which can be permitted to be canvassed before the Court in Writ Proceedings. (para 16) The inquiring authority based its conclusions on materials available on record and after considering the defence put forth by the appellant. The conclusions cannot be drawn in a reasonable manner and objectively. These conclusions cannot be termed as perverse or not based on any material, nor it is a case where there has been any non-application of mind on the part of the inquiring authority. The High Court within its limited scope under Article 226 too has looked into the material on the basis of which the inquiring authority had formed its conclusion. There is no fault in the findings of the High Court (para-17)".
In ADMINISTRATIVE TOTAL JUDGMENTS 2000(1) P.171 (THE HIGH
COURT OF JUDICATURE AT BOMBAY, through its Registrar Vs. Shashikant S.
Patil & another ) their Lordships have observed as under:
"16. The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/disciplinary authority of the High Court, interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulation prescribing the mode of such inquiry or if the decision of the authority is vitiated by consideration extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot over look that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole Judge of the facts, if the inquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the finding can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition under Article 226 of the Constitution".
In the present case, the Inquiring Authority has held the inquiry in accordance
with the procedure as per the directions of the Tribunal. The petitioner was given fair
opportunity of being heard. There is no violation of principles of natural justice. The
competent authority accepting the inquiry report has imposed the punishment of
canceling the candidature of the petitioner apart from debarring him from the
examination between 1988-93. Therefore, the opinion drawn by the Inquiring
Authority and the punishment imposed cannot be termed as perverse or not based on
any material. There is application of mind on the part of the concerned authorities.
Therefore, there are no merits in the writ petition.
6. Accordingly, the writ petition is rejected.
***
391
W.P.No. 27214 of 1999 D.D. 23.6.2000
Hon'ble Mr. Justice G.C.Bharuka Hon'ble Mr. Justice R.Gururajan
M.S.Krishnappa – Petitioner Vs. The State of Karnataka & Others – Respondents Recruitment to the post of Head Master The petitioner applied claiming reservation under Category-I and produced Caste Certificate in Form No.II instead of prescribed Form No.III after over writing Form No.II as Form No.III. Commission rejected the petitioner's claim under Category-I and treated him as G.M. candidate. He was not selected as the marks obtained by him were less than the cut off marks under G.M. category. The petitioner approached K.A.T. but his application was dismissed. The High Court in view of the reply statement of the Tahsildar who issued the Caste Certificate that the petitioner belongs to Category-I allowed the writ petition and directed the Commission and the Government to select and appoint the petitioner against any existing or future vacancy.
O R D E R
G.C.BHARUKA, J: The petitioner is aggrieved by the order dtd 09.02.1999 (Annexure 'C') passed
by the Karnataka Administrative Tribunal in Application No. 6632/98 rejecting the
application filed by the petitioner seeking directions to the respondent Karnataka
Public Service Commission (in short the 'Commission') to place his name in the select
list of Category-I for the post of Head Master.
2. Pursuant to notification No. E(1)22827/96-97/PSC dtd 16.10.1996 issued by
the Commission, the petitioner had filed an application for seeking appointment to the
post of Head Master. He had claimed reservation under Category-I since according to
him he belonged to Golla Caste.
3. On receiving admission ticket bearing Registration No. 05408, he appeared at
the written examination and on successful completion thereof he was called for
interview and personality test on 05.11.1997. The interview notice also required the
petitioner to furnish all the certificates including caste and income certificate in
original for verification. Accordingly, the petitioner produced the said certificates.
4. So far as the caste certificate is concerned it was issued by the Tahsildar in
Form No. II, copy whereof has been produced at Annexure 'A-4'. According to this
certificate, the petitioner belonged to 'Golla' Caste. The certificate, which is Kannada,
was to the following effect:-
392
¥Àj²Ã®£Á ¥ÀæªÀiÁt ¥ÀvÀæ
²æÃ/²æêÀÄw ÀħâAiÀÄå£ÀªÀgÀ ªÀÄUÀ JA.J¸ï.PÀÈμÀÚ¥Àà JA§ÄªÀªÀgÀÄ PÀ£ÁðlPÀ gÁdåzÀ PÉÆïÁgÀ f¯Éè
²æäªÁ À¥ÀÄgÀ vÁ®ÆèPÀÄ «Äà ÀUÁ£ÀºÀ½î UÁæªÀÄzÀ°è ¸ÁªÀiÁ£Àå ¤ªÁ¹AiÀiÁVzÁÝgÉAzÀÄ ªÀÄvÀÄÛ EªÀgÀÄ UÉÆ®ègÀÄ eÁwUÉ
ÉÃjzÀªÀgÁVzÀÄÝ EvÀgÉà AiÀÄAzÀĽzÀ ªÀUÀðUÀ¼À £ÀªÀÄÆ£É-2gÀ ªÀUÀðPÉÌ ÉÃjzÀªÀgÁVgÀÄvÁÛgÉ. gÁ.¤. ªÀgÀ¢AiÀÄAvÉ
ªÁ¶ðPÀ DzÁAiÀÄ 7,000/- (K¼ÀÄ ¸Á«gÀ gÀÆ. ªÀiÁvÀæ.)
ÀܼÀ: ²æäªÁ À¥ÀÄgÀ À».
¢£ÁAPÀ: 18-10-96 vÀºÀ²Ã¯ÁÝgï
The English translation of the above certificate is as under:-
Sri. M.S. Krishnappa S/o Subbaiah, is the resident of Meesaganahalli,
Srinivasapura Taluk, Kolar Dist. He belongs to Golla Caste/Sub-Caste and belongs to
Form-II and according to the report of the Revenue Inspector their income is Rs.
7,000/-
Sd/- Tahsildar
Srinivasapur Taluk. Place: Srinivasapura Date: 18.10.1996 5. According to the respondent Commission, the certificate, which was produced
at the time of interview, was tampered by overwriting 'Form No.2' as 'Form No.3' and
therefore the Commission took the decision to treat the petitioner under General Merit
Category. The Commission has further stated that since under the General Merit
category the marks secured by the petitioner was far below the marks secured by the
last candidate of General Merit category, he could not be selected to the post in
question.
6. On being moved by the petitioner, the Tribunal agreed with the view taken by
the Commission merely on the ground that the petitioner was quality of overwriting
'Form No. 2' as 'From No. 3' in the Caste Certificate and as such the Commission was
right in considering the caste certificate of the petitioner as tampered one.
7. In the statement of objections filed by the respondent Tahsildar it has been
clearly stated that previous Tahsildar Sri. H.R. Nagaraj had issued caste certificate in
respect of the petitioner on 18.10.1996 in Form No.2 as prescribed by the
Government. According to him, there was no requirement of mentioning Form No.2
in the verification column. Instead he ought to have mentioned Category-I since
'Golla Caste' falls under Category-I as per the Government Order No. SWD 61 BCA
393
95, Bangalore, dtd 28.12.1995. He further stated that the certificate produced by the
petitioner was genuine one. According to him, this fact was also brought to the notice
of the Tribunal by way of statement of objections filed before it.
8. Before the Tribunal, though statement of objections has been filed by the
respondent authorities, they have not disputed the foundational fact that the petitioner
belonged to 'Golla' caste. More over, the genuineness of the caste certificate has also
not been disputed. The Commission does not dispute that the petitioner belongs to
Golla Caste. According to the petitioner, he had produced the original caste certificate
as issued by the Tahsildar and there was no occasion or purpose on his part to make
any tampering by overwriting Form No.2 as Form No.3 because admittedly for
backward classes/communities falling under Category 'A' 'B' 'C' and 'D' Form No. 2
was the appropriate form as prescribed by the State Government under Government
Order DPAR 28 SBC 86, dtd 12.12.1986. According to the petitioner, overwriting
was done in the office of the Commission just to deprive him of his rightful claim for
consideration of his appointment under Category-I. Keeping in view the facts and
circumstances of the case, we find no reason to discard his explanation. Further, as
rightly stated in the statement of objections, in the certificate given by previous
Tahsildar, he ought to have stated that the petitioner belongs to Category-I instead of
mentioning Form No. 2, which is a error committed by him.
9. In any view of the matter, since admittedly the petitioner belongs to Golla
Caste, which falls under Category-I, the Commission should have taken notice of this
inferential fact. We are conscious of the fact that the Commission cannot determine as
to the class to which the applicants belong and it is bound by the certificates given by
the competent authority in this regard, but whether a particular caste falls in one
category or the other is an inferential fact to be drawn with reference to the
notifications setting out classes and categories for reservation.
10. Moreover in the present case, in the certificate issued by the Tahsildar, he had
not at all spoken about the category in which the Golla Caste falls. Therefore, the
Commission either ought to have referred the relevant government notification to
ascertain the correct category or ought to have required the Tahsildar concerned to
make corrections in the certificate issued by him. However, without taking to such
course, the Commission rejected the claim of the applicant regarding his right to seek
appointment in the reserved Category-I. We are unable to subscribe to the view taken
by the Commission.
394
11. Accordingly, the impugned order passed by the Tribunal rejecting the
application cannot also be sustained which is accordingly quashed.
12. After having so held, it will be proper to notice the contents of para 8 of the
Statement of Objections filed by the Commission, wherein it has been stated that
provisional select list in regard to the selection was published on 16.09.1998 and the
final select list was published on 25.02.1999. According to the respondent
Commission, the final select list was sent to State Government on 03.03.1999 and
possibly appointment orders have also been issued to the selected candidates.
According to us, even it be so, for the fault of the respondents the petitioner cannot be
made to suffer. Therefore, we direct that the name of the petitioner should be included
in the waiting list in Category-I and he should be offered appointment on the post of
Head Master against any existing or future vacancy.
13. With the said observations and directions, the writ petition is allowed. There
will be no order as to costs.
***
395
2000 (3) KCCR 1994 Writ Petition Nos.2653-2655 of 2000
D.D. 7.7.2000
Hon'ble Mr. Justice R.Gururajan D.C.Kurnal and Others – Petitioners Versus Karnataka Public Service Commission & Ors. – Respondents
Held : In the case on hand, admittedly the petitioners were provided a concession of rural weightage in terms of Interim Orders of this Court. Interim Order dated 2.2.1999 categorically states that both the lists prepared shall be subject to the result of Writ Appeal 5807 of 1998. Admittedly Writ Appeal 5807 of 1998 has been dismissed and order again confirmed by the Supreme Court. Therefore the petitioners in my opinion cannot take advantage of the list with rural weightage to contend that they are entitled for announcement of their result pursuant to their examination on the basis of the rural weightage list. When the very rural weightage rule is held as unsustainable Courts cannot pump blood and inject life into a dead rule, which rule is declared to be a dead rule by this Court.
It is well accepted principle of law that any interim order is always subject to
the final result. When the very Writ Appeal has been dismissed, the petitioners cannot derive benefit of a list prepared out of an interim order. Therefore no relief can be granted to the petitioners.
ORDER Petitioners in these petitions are seeking for the following reliefs-
“ (a) DECLARE that the selection of the petitioners for Gazetted Probationers
main examination 1998-99 as evidenced by Notification bearing No. E (1) 22995-98-
99-PSC dated 5-2-1999 (Under Annexure-F to the writ petitions) has become final and
it shall not be disturbed by virtue of the order dated 16-12-1999 passed by the Division
Bench of this Hon’ble Court in Writ Appeals Nos. 5807 of 1998 and connected cases
and consequently QUASH Notification bearing No. E (1) 182/90-2000/PSC dated 12-
1-2000 (Under Annexure-L to the writ petition) by issue of an appropriate writ, order
or direction and consequently direct the 1st respondent to redo the select list for
personality test for personality test pursuant to the Gazetted Probationers Group-A and
Group-B posts (Main) examination 1998-99.”
2. Facts-
The Karnataka Public Service Commission (‘Commission’ for short ) issued a
notification dated 9-3-1998 calling for applications from eligible candidates for
preliminary examination to recruit Group- A and B Officers (Gazetted Probationers) in
the service of the State. Petitioners submitted applications in response to the
notification. The said notification provided for rural weightage under the rules.
396
Admission tickets were issued by the Commission for preliminary examination.
Petitioners participated in the preliminary examination held by the Commission.
3. Petitions were filed before this Court challenging that part of the Rural
providing for weightage of additional marks to the rural candidates. The said petition
came to be allowed by this Court holding that the said rule as unenforceable in law.
However, the Court ruled that notwithstanding the above declaration of law the
appointment of persons already made on the basis of rural weightage and who are
working on their posts will not be disturbed and their appointments will not be
adversely affected because of the present judgment. After the judgment the
Respondents published the list of those who were successful in the preliminary
examination excluding the rural weightage. The State Government field a writ appeal
and the Division Bench grated an Interim Order to the effect that the order to the effect
that the order of the learned single judge is stayed “ with the stipulation that
Selection/Appointment shall be made subject to the decision of the Writ Appeal and
the Appointing Authority before giving order of appointment to a candidate having
rural weightage shall obtain an undertaking from the candidate that the appointment
given shall be subject to the decision in the writ appeal and that the candidate shall
have no right to the post in the event of the order of the learned single judge being up
held.” After the interim order passed in writ appeal, the commission selected the
candidates for main examination after providing the benefit of rural weightage for
preliminary examination. Petitioners were declared to have come out successfully
and to have been selected for the main examination. Petitioners thereafter, applied for
main examination in terms of the endorsement.
4. The Division Bench in the meanwhile dismissed the Writ Appeals and in para
22 directed as under-
“ For the foregoing reasons, we do not see any merit in the appeal. The Learned Single Judge was right in striking down the impugned Rules. We affirm the observations made by the learned Single Judge that the candidates who have already been appointed by giving ‘ rural weightage’ should not be disturbed and also the persons who have been appointed during the pendency of these appeals unit now on the basis of rural weightage.’’
Thereafter, an application was filed seeking for modification and the following order
was passed on 16-12-1999.
“ …..We affirm the observations made by the learned Single Judge that the candidates who have already selection and appointed by giving ‘rural weightage’ should not be disturbed and also the persons appointed or selected during the pendency of these appeals until now on the basis of rural weightage.’’
397
The Commission by notification dated 12-1-2000 published the results of the final
examination and the petitioners name did not find a place in the said notification. It is
in these circumstances, petitioners are before this Court seeking for the prayers as
mentioned earlier.
5. Respondents 3 and 4 got themselves impleaded as a party in terms of the order
of this Court dated 14-3-2000. Respondents have filed a detailed counter. The
Commission has also filed a detailed counter along with two orders of this Court dated
4-12-1998 and 2-2-1999. The Commission has stated that the list published on 4-12-
1998 with rural weightage has lost its legal existence in view of the order made in WA
No. 5807 of 1998. They have sated that two lists were prepared one with rural
weightage and another without rural weightage in terms of an order dated 2-2-1999.
Now that the appeals have been dismissed by this court and the list with rural
weightage lost its significance. The commission says that what is saved is only final
selection and appointment of the persons during the pendency of the appeals. The
impleading respondents have also filed a detailed counter. They say that the
Judgment of the Division Bench is confirmed by the Supreme Court by dismissing the
Special Leave petition filed by the State. Their contention also is that any list
prepared pursuant to an interim order has no legal basis/ sanction and it cannot stand
after the dismissal of the main writ appeal. They contend that there is no necessary to
redo the selection list for personality test for interview or to restrain the first and
second defendants from taking any further proceedings pursuant to the notification
dated 12-1-2000.
6. I heard the Learned Counsel Sri P.S.Rajagopal, appearing for the petitioners,
Smt. B.V.Nagarathna, Learned Counsel appearing for the contesting respondents and
Sri T. Narayanaswamy, Learned Counsel appearing for the Commission.
7. The admitted facts reveal that a rule providing for rural weightage had been
struck down by this Court which has been upheld by the Division Bench and also by
the Supreme Court. During the pendency of the writ appeal, the Division Bench an
order dated 4-12-1998 providing for an undertaking from the candidates and also
providing for the selection/appointment to be made subject to the decision of the
appeal. Thereafter another interim order was passed on 2-2-1999 providing for a
permission to take the final examination by those candidates towards successful in the
preliminary examination held by the Corporation. The final result is subject to the
decision of Writ Appeal No. 5807 of 1998. The Division Bench also directed the
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commission to prepare two lists one with rural weightage and another without rural
weightage in terms of the interim order of the Division Bench. The Government
circular dated 22-12-1999 also provides for certain guidelines.
8. Mr. P.S. Rajagopal, Learned Counsel contends that the petitioners were
successful in preliminary examination and they were also permitted to participate in
the final examination with the rural weightage and that they are successful with rural
weightage. Without rural weightage they have to lose the battle of examination.
According to the Counsel in view of selection/appointment with rural weightage and
in terms of the judgment no disturbance can take place in respect of these petitioners.
He argues that the word “ Select” would include the selection for main examination
with rural weightage in view of saving by this court. He wants a wide interpretation
to be given to the word select on the facts of this case.
9. Per contra, both Mrs. Nagarathna and T. Narayanaswamy, appearing for the
Respondents contend that the word ‘Select’ has to be understood in the context of the
rules and the materials on record. If the petitioner is the benefit of saving of
selection/appointment even to the main examination in terms of the list as per the
interim order according to the Respondents Counsel a new lease of life is granted to
dead rule confirmed by this Court.
10. After giving my serious thought to the rival contentions I am of the view that
the Respondents Counsel are right in their stand in the matter. Selection/appointment
in service jurisprudence has its own connotations. The Karnataka Recruitment
Gazetted Probationers by appointment by competitive examination rules provide for
an application holding of competitive examination, age limit, attempts, academic
qualifications, reservation, competitive examination etc., Rule 11 of the rules provide
for a list of candidates being prepared for suitability for appointment. Though the
word select is not found in Rule 11, a reasonable interpretation would include
selection under 11 of the Rules. In the case on hand, admittedly, the petitioners were
provided a concession of rural weightage in terms of the Interim Orders of this Court.
Two sets of lists were prepared one with rural weightage and one without rural
weightage were published in terms of an Interim Order dated 2-2-1999. The Interim
order dated 2-2-1999 categorically states that both the lists prepared shall be subject to
the result of the Writ Appeal 5807 of 1998. The preparation of two lists is only an
interim measure to avoid any administrative difficulties during the pendency of the
writ appeal and those lists were subject to the final result of Writ Appeal of 5807 of
1998. Admittedly Writ Appeal 5807 of 1998 is dismissed, which again is confirmed
399
by the Supreme Court. Therefore, petitioners in my opinion cannot take advantage of
the list with rural weightage to contend that they are entitled for announcement of their
result pursuant to their taking examination in the main examination on the basis of
rural weightage list prepared in view of an interim order. The Petitioners were
successful in the main examination only with rural weightage. When the very rural
weightage rule is held to be unsustainable in law, Courts cannot pump blood or inject
life into a dead rule, which rule is declared to be a dead rule by this court. The
submission of the petitioners in these cases in my opinion is to give a further lease of
life to a rule in an indirect manner even after its striking down by this court. Courts
cannot permit any lease of life in respect of a list with rural weightage prepared in
terms of an Interim Order which rule has been held to be unsustainable in law by final
order.
11. In these circumstances, I am clearly of the view that the commission is right in
saying that the list published with rural weightage has lost its legal existence in view
of the dismissal of the writ appeal. It is well accepted principle of law that any
interim order is always subject to the final result. When the very writ appeal has been
dismissed, petitioners cannot derive any benefit of a list prepared out of an interim
order. It is well settled that interim order get itself merged with the final order and
therefore no relief can be granted to the petitioners on the facts of this case.
12. Petitioner’s Counsel however, argued that the saving of selection/appointment
protects them in the case on hand. The word ‘ select’ has to be understood in the
context in which it is made. Selection/appointment involve the same/similar process
in the matter of employment. There may be cases of selection for appointment and
there may be appointment by way of selection. The term ‘select’ cannot be split into
for various/different purposes as contended by the petitioners. The petitioner’s
request for a “declaration at Annexure-F has become final the same cannot be
disturbed by the judgment of this court” cannot be accepted in the light of the
dismissal of writ appeals confirmed in SLP. Petitioner on the facts of this case cannot
derive any assistance from the saving clause. Petitioner’s Counsel argues that the
saving of Selection/ appointment protects them in this case. There cannot be any hair
split selection as contended by the petitioners in the matter of selection/appointment
etc. In the light of the dismissal of the writ appeal and SLP: the petitioners cannot
derive any benefit for a saving d=clause in the judgment of this Court.
13. In these circumstances, I am of the view that the petitioners request for a
declaration that Annexure ‘F’ has become final and the same cannot be disturbed by
400
the judgment of this Court cannot be granted on the facts of this case. The judgment
of this Court is final and binding on parties and the petitioners cannot seek for a
direction to redo the select list towards personality test as sought for in this petition
after dismissal of writ appeal.
14. The Respondents Learned Counsel also placed before me a judgment of this
Court in WP 43449 of 1999. This Court in the said case ruled that no writ petition
can be filed seeking a direction to the authority to repeat an illegality on the ground of
discrimination. In another batch of petitions in WP Nos. 286-288 of 2000, this Court
after noticing the judgment of the Division Bench in identical Circumstances ruled
that the benefit is applicable only in respect of a final list. Looking from any angle,
no relief could be granted to the petitioners in these cases and any relief if granted
would be running counter to the judgment of this Court.
15. In the result, I reject all the contentions urged for the petitioners. The writ
petition is dismissed.
Parties are to bear their respective costs.
***
401
W.P.No. 30149/1999 D.D. 20.7.2000
Hon'ble Mr. Justice G.C.Bharuka Hon'ble Mrs. Justice Manjula Chellur
Dr.M.Ramachandra – Petitioner Vs. Karnataka Public Service Commission - Respondent Recruitment to the post of Ayurvedic Physician (Grade III) in the department of Indian System of Medicine and Homoeopathy The petitioner claimed reservation under Category IIA. As the Caste Certificate produced by the petitioner was not in the prescribed form as per the form given in the notification, obtained much before the date of notification and also incomplete not signed by the parents in the relevant column, the same was not considered by the Commission. The application filed by the petitioner before KAT was dismissed. The High Court confirmed the order of KAT by rejecting this writ petition.
O R D E R
MANJULA CHELLUR, J:
The writ petition is filed for issue of writ of certiorari to quash the order of
Karnataka Administrative Tribunal dated 26.03.1998 in Application No. 6376/1997 as
per Annexure-N, to extend the relief as sought for before the KAT in Application No.
7376/97 as per Annexure-A and such other relief's as this Court deems fit and proper
in the circumstances of the case.
2. Karnataka Public Service Commission had invited applications for the
recruitment to the posts of Ayurvedic Physician (Grade-III) in the Department of
Indian System of Medicine & Homeopathy by their notification dated 30.07.1996.
The last date for the receipt of the applications from the candidates was fixed as
12.09.1996. The petitioner was one of the aspiring candidate for the said post and
submitted his application on 06.09.1996 claiming reservation under the category II(A).
He had submitted Caste Verification Certificate in support of his claim which is one of
the terms and instructions stipulated for the said post. But the said Caste Certificate
was not accepted by the 1st respondent as per the endorsement dated 24.05.97 which
followed by second endorsement dated 06.06.1997. The objection was that in Form
No. 2(A) declaration of income required to be singed by the parents like father,
mother, was actually signed by the candidate himself. Therefore, in the absence of
proper certificate his case was considered under General Merit.
3. This was questioned by the petitioner before the KAT in Application NO.
6376/97. He further contends that the verification certificate signed by the Tahsildar
402
on 04.07.96 clearly reveals that the petitioner belongs to Kuruba Caste which falls
under the category of 2(A) in pursuant to the order of the Government. It is also
contended that the petitioner filed self-declared declaration under Form No.3 as
stipulated by the Government which is at Annexure-C. This was also verified and
certified by the petitioner and the Tahsildar.
4. When he received interview notice dated 11.04.1997 requiring him to appear
for interview under general merit on 29.04.97 at 10.30 a.m. he represented by a letter
dated 19.04.97 seeking clarification from the Public Service Commission. At the time
of sending the letter, he enclosed another Form No. 3 declaration of Caste and income.
This was also not considered by the KPSC on the ground that it was not signed by the
father, mother, but signed by the candidate itself. He sent one more representation
dated 27.05.97 and an endorsement was sent dated 06.06.97 by KPSC informing him
that his claim was rejected. This was challenged before the KAT and the said
Application 6376/97 came to be dismissed on 23.06.98.
5. The stand of the respondent herein is that no doubt the petitioner had sent his
application for the post of Ayurvedic Physician (Grade-III) in response to the
notification dated 30.07.96. According to them the right of the candidate to
recruitment crystalises as on the date when the notification in that context was issued.
The status of the candidate claiming under a particular category must be as on the date
when he put forth his claim. Therefore, according to them the reservation certificate
which was to be produced by him must be one obtained on or before the date of
notification and within the last date and must be filed along with the application.
Therefore, the reservation certificate dated 04.07.95 much prior to the date of
notification dated 30.07.96 will not come to the rescue of the applicant. It is further
contended that only the Verification Certificate (Parisheelana Pramana Patra) dated
04.09.96 has been produced by him without the entire declaration form. The
reservation certificate produced by him dated 04.07.95 is also defective which was not
signed by his parents at the relevant column which is essential and mandatory.
6. The petitioner has questioned the appointment of one Smt. Kamala on the
ground that she was provided an opportunity to produce original copies of declaration
after it was signed by the Tahsildar and the said concession was not given to the
petitioner. This is clarified by the Commission in their objection statement contending
at para 7, said Kamala had enclosed Verification Certificate dated 06.09.97 issued by
the Tahsildar taken in the name of her husband. She was selected under General Merit
(Women category). Therefore, the petitioner cannot claim said benefit to him.
403
7. The Public Service Commission has also produced before this Court the
notification dated 30.07.96. The last date for submitting the application on 12.09.96 is
not in dispute. Along with this notification, instructions are given how the application
should be filed and what are the disqualifications to reject the application also.
Example of Form No.2 and Form No.3 are also furnished as Annexure. According to
the petitioner, the Verification Certificate dated 04.09.96 was enough to establish his
claim of category 2(A) to consider to case of the petitioner by the respondent under
category 2(A). As stated supra, the respondents have taken three contentions for not
accepting the contention the contention of the petitioner to consider his case under
category 2(A).
8. The Verification Certificate dated 04.09.96 issued by Special Tahsildar,
Bangalore North Taluk is at Annexure-B upon which the petitioner is relying upon.
Annexure-C is Form No.3 that was produced by the petitioner before the Commission.
This is also issued by Tahsildar, Bangalore North Taluk dated 04.07.95. On
comparing this Annexure-B i.e., form No.2 the Verification Certificate with the model
Verification Certificate which was one of the annexure along with the relevant
notification reveals that this Verification Certificate is an incomplete one. Unless the
certificate as prescribed in Form No.2 was produced in full with all the particulars, it
cannot be said that the applicant had complied with the requirements regarding the
production of caste certificate. On verification of this Form No.2, it contains two parts.
The first part contains certain details to be given in the form of declaration by the
candidate, his parents and two witnesses from the locality and lastly the Verification
Certificate by the competent authority i.e., Tahsildar concerned. It is apparent that
Form No.2 dated 04.09.96 is an incomplete certificate that was produced by the
candidate.
9. So far as Form No.3 is concerned, no doubt as per Annexure-C, the candidate
has produced this certificate along with his application. There are several columns
i.e., 1 to 12 to be filled up by the candidate. Below that declaration on oath has to be
given by the candidate himself and below that the parents or guardian have to sign the
declaration. After that to local witnesses have to sign giving full address then the
Verification Certificate must be signed by the concerned Tahsildar. In this case the
column where either the parents or the guardian had to sign, the declaration is signed
by the candidate himself i.e., the petitioner. The object of signature of the parents
must be to stem out mischievous tendencies on the part of the applicants to give all the
particulars while claiming reservation. When all the particulars are not complied with
404
in the required form which is one of the terms and conditions of the notification, then
this Form No. has to be held as incomplete.
10. The next ground was that the Form No.3 was obtained much earlier to the very
notification itself that too in the incomplete form i.e., without the signature of the
parent or guardian at the relevant column.
11. To claim particular category by candidate, he must be falling under that
category as on the date when he sets his claim. The reservation certificate produced
by him is dated 04.07.95 much prior to the date for notification i.e. 30.07.96. Even
this Form No. 3 which was submitted by him was incomplete. In the sense where the
parents or guardian had to sign the verification it was signed by the candidate himself.
Hence Form No.3 is not a proper certificate which would come to the aid of the
petitioner herein.
12. In view of the above discussion and reasons, viewed from any angle, the
petition has to fail.
13. Accordingly, the writ petition is dismissed. No order as to costs.
***
405
2000 (5) KLJ 548 Writ Petition No.7987/2000
D.D. 4.8.2000 The Hon'ble Mr.Justice R.Gururajan
Nagaraj B.M. – Petitioner Vs. The Karnataka Public Service Commission & Anr. - Respondents
Constitution of India, Articles 16(1) and 226 – Selected candidate – Denial of appointment to – Unreasonably short-time given to candidate to produce original certificates for verification and on his failure to produce certificates on appointed date, his selection was cancelled – Mandamus issued to Commission to complete verification of certificates and to maintain selection already made - Mandamus not complied with, and selection of candidate cancelled by withdrawing rural weightage marks on ground that rule providing for grant of such weightage has been struck down by Court – As striking down of rule was subsequent to issue of mandamus and as Court, while striking down rule, had specifically declared that its order would not disturb selections already made, refusal to comply with mandamus is not sustainable in law – Direction issued to comply with same. ORDER 1. This petition is an offshoot of an earlier writ petition in WP No. 37357/98 dated 21.9.99. 2. Facts in brief of the case are as under:
An unfortunate candidate who is deprived of selection for reasons beyond his
control is before this court seeking for the following prayers:
“A) Issue writ in the nature of certiorari or any other writ to quash the
endorsements of the respondent in No.E (2) 2131/99-2000 dated 18-1-2000 as per Ann.F & also the endorsement dt.16.2.2000 in No. E(2) 2135/99-2000 as per Annexure H;
B) Direct the respondent to include the name of the petitioner in the final select list in proper ranking and assign the same to the Government enable the government to issue order of appointment to the petitioner with full salary from the date of order of this Hon’ble Court dt. 21-9-99 in WP No.37357/98 as per Annexure B;
C) Issue any appropriate writ order or directions as this Hon’ble Court deems to be fit and proper in the circumstances of the case and allow this writ petition with cost in the ends of justice and equity.”
3. The petitioner was a candidate for a competitive examination held by the
respondent-1, Karnataka Public Service Commission (“Commission” for short) for the
post of Assistants and First Division Assistants to the Civil Services of the State. He
was successful in the examination and obtained the required marks for selection.
During the relevant point of time there was no viva or interview in the process of
selection. Petitioner belongs to category III A and the Commission required the
petitioner to appear before it on 1-8-98 at 10.30 A.M, for verification of the
406
testimonials of the petitioner with the original. The said letter was dt. 30-7-98 which
was dispatched on 31-7-98. The said letter was served on the petitioner after the due
date i.e., 1-8-98. He could not appear for the purpose of verification only. His case
was not considered and hence he was obliged to move the Karnataka Administrative
Tribunal (for short “Tribunal”) in Application No. 4624/98. The Tribunal rejected
his case and hence he approached this court in WP.No.37357/98. This court disposed
of the writ petition with directions to in particular a direction to the Commission to
provide an opportunity for production of the original testimonials for verification and
for subsequent inclusion and selection in the matter. Subsequent to the order of this
court after verification respondent issued an endorsement on 18-1-2000 stating therein
that the petitioner is ineligible for selection for recruitment to the post of first division
assistant. Thereafter a letter was addressed to the Commission as per Annexure G and
a second endorsement dated 16-2-2000 was issued to the petitioner in which it is
stated that rural weightage cannot be granted in the light of the order of this court in
WA No.5807/98. Petitioner is again before this court seeking an order to quash these
two endorsements.
4. Notice was issued pursuant to which the respondents filed a detailed statement of
objections. The respondents stick to the word “ in order” and on the basis of the word
“in Order” they contend that in view of the striking off the rural weightage and in view
of petitioner’s non selection on the date of judgment, their endorsement is proper and
legal.
5. I have heard the learned counsel Mr. M.R. Rajagopal, for the petitioner and Sri
T. Narayanaswamy, learned counsel for respondent 1.
6. Both the counsels reiterate vehemently the facts and the grounds raised by them
in their respective statements.
7. Admittedly in the case on hand the petitioner had undertaken competitive
examination in 1997 and in all respects he was selected by the Commission but for
verification of the testimonials with the originals. As could be seen from the material
fact narrated above the petitioner was unable to produce the originals on the date due
to reasons beyond his control resulting in deprivation of his selection alongwith others
during 1997. Petitioner was unsuccessful before the Tribunal and hence filed a writ
petition.
407
8. A Division Bench of this Court in WP No.37357/98 filed by the petitioner has
noticed the facts as under:
“ The time provided to the petitioner for appearing in the interview was too little and cannot be considered to be reasonable. Petitioner reached the office of the Commission on 3rd August 1998 and pleaded with the authorities to provide another opportunity to produce the original testimonials for verification. According to the petitioner he has obtained 220 marks in the written test and in case his testimonials are found to be in order he is bound to be selected and appointed as persons with lesser number of marks have been appointed. We are constrained to held that the Commission has acted in this case in an unjust and arbitrary manner. Tribunal has erred in dismissing the application filed by the petitioner.”
9. The Division Bench of this court in para 8 has issued the following directions:
“ A mandamus is issued to the Commission to provide the petitioner with another opportunity to produce the original testimonials for verification and if the testimonials are found to be in order then include the name of the petitioner in the final select list. Commission is directed to assign ranking as per merit of the petitioner with references to the marks obtained in the examination and the preference given by him. On receipt of the recommendation from the Commission the government is directed to take the petitioner in service and assign him the seniority in the service as if the petitioner had been initially selected along with other candidates. Appointment to the petitioner in service shall date back to the date person lower in merit in the select list was given the appointment. He shall be entitled to the seniority and other benefits in the service for all intents and purposes but shall not be entitled to any arrears of pay etc., for the period he has not worked. Writ petition is allowed with costs which are assessed at Rs.2000/-.”
10. A careful reading of the facts and directions indicate that this Court has
virtually directed the selection and inclusion of the petitioner as could be seen from
the reading of the order as a whole. Since the originals were required to be verified
with the testimonials filed by the petitioner this court thought fit to give a direction to
the Commission to verify the testimonials and if found in order include his name in the
final select list. The word “in order” is referable to the testimonials and not for any
other purpose. It is rather unfortunate that the Commission has rejected the case of
the petitioner on a ground which was neither raised at the earlier point of time or
raised before the tribunal or before this court. When the writ petition was disposed of
nothing prevented the Commission to say that in view of a direction petitioner’s case
cannot be considered on the ground of “rural weightage”. The same was not done.
On the other hand the only argument advanced before the Division Bench was that it
had rejected the case of the petitioner on account of his non appearing on the due date
which rightly was rejected by the Division Bench on the peculiar facts and
circumstances of the case.
408
11. That being the position on facts I am unable to understand the reasoning in the
present endorsement which has been issued as per annexure F and H. In my opinion
the present endorsement runs counter to the judgment of this Court. This Court
specifically directed the completion of the ministerial act of verification of the records
with the originals. No opportunity as such was given for reopening the case on merits
as I see from para 8 of the order. In fact this court has said in unmistakable terms that
if testimonials were found to be in order the Commission was directed to include name
in the final select list with a ranking and recommendation. A further direction was
issued to the government to provide an appointment which shall date back to the date
when others were selected in the select list.
12. In my opinion the present rejection on the ground of rural weightage is not
unsustainable in the light of a specific direction of the division bench. Nothing
prevented the Commission either to seek clarification or review of the order of the
Division Bench. Instead a new ground has been invented to reject the case of the
petitioner on the ground of rural weightage. Moreover but for the non appearance on
the said date his name also would have to be included along with other rural weightage
candidates. Hence the rejection of the case of the petitioner on the ground of rural
weitghtage for no fault of his requires my interference.
13. Under these circumstances I have to accept the argument of the petitioner that
the rejection is unsustainable on the facts of this case. The vehement argument of Sri
T. Narayanaswamy that the word “in order” has to include the consideration of the
weightage does not appear to be correct. Looking from any angle the present order is
unsustainable both on fact and in law particularly in the light of a clear direction of
this court.
14. At the time of argument to my repeated questions the counsel for the
Commission stated that after verification original testimonials were verified and found
to be in order.
15. In the circumstances I deem it proper at the cost of repetition once again to
direct the Commission to strictly comply with the directions of the division bench.
16. In the result this writ petition is allowed. Commission is directed as per the
order of Division Bench which has become final to include the name of the petitioner
in the final list and to assign him the ranking as per merit of the petitioner with
reference to the marks obtained in the examination. On receipt of the
409
recommendation from the Commission the State Government is directed to take the
petitioner in service as if the petitioner has been initially selected with other
candidates; appointment of the petitioner in service shall date back to the date of a
person lower in merit in the select list was given the appointment. Petitioner is
entitled to seniority and all benefits for the purpose except for arrears of pay for the
period he has not worked in terms of the directions already issued by the division
bench in earlier order. Writ petition is allowed but without costs. Time for
compliance is one month from today.
***
410
WP No. 35532/1998 (S/KAT) D.D. 19.11.2001
Hon'ble Mr. Justice R.V.Raveendran Hon'ble Mr. Justice K.Patil
Mamtaz M.Dakhani – Petitioner Vs. The Karnataka Public Service Commission & Others – Respondents Recruitment to the post of Kannada Lecturers in Government Pre-University Colleges The petitioner who was a candidate had secured 56.25% in the qualifying examination i.e. M.A. (Kannada). The petitioner represented to the Commission that she had applied for re-valuation and produced a communication dated 29.7.95 sent by the University to the effect that she had secured I Class 60% on re-valuation with a covering letter on 7.9.95. The Commission informed the petitioner that as the re-valuation marks were declared after the last date for receipt of application i.e., 9.8.95 the re-valuation marks were not considered and instead 2nd Respondent who had secured less marks was selected under Category-IIB. Application filed by the petitioner before KAT was dismissed. High Court in view of the fact that the re-valuation marks of the petitioner were declared on 29.7.95 much before the last date fixed for receipt of applications, though communicated to the petitioner on 19.8.95 allowed the writ petition and directed the State Government to consider the petitioner for appointment with prospective effect without disturbing the appointment of the 2nd respondent.
ORDER RAVEENDRAN, J:
Issue Rule. Original records are produced by the Learned Counsel for KPSC.
The matter is heard finally by consent.
2. KPSC invited applications for recruitment to the post of Kannada Lecturers in
Government Pre-University Colleges, as per its notification dated 29.05.1995. The
last date for receipt of the applications was 09.08.1995. The petitioner submitted two
applications, one through post and one in person, within time. Along with the
application, she produced xerox copies of the marks certificates and other documents
as required. As per the marks card annexed to the application, she had secured
56.25% in the qualifying examination i.e., M.A. (Kannada).
3. The petitioner claims that she had applied for revaluation o 22.06.1995 and the
University (Shivaji University, Kolhapur) by communication dated 29.07.1995
informed her that on revaluation, she had secured higher marks in Modern Poetry and
History of Kannada language and as a consequence, she has secured First Class (60%)
instead of Second Class (56.25%). The petitioner however received the said
communication from University only on 19.08.1995. She sent a xerox copy of the
said certificate showing her revised marks to the KPSC under cover of letter dated
07.09.1995 (wrongly stated as 22.08.1995) in Annexure-D) and requested the KPSC to
411
consider her revaluation marks. Accordingly, KPSC took note of the revaluation
marks and sent an interview notice dated 14.06.1996 calling her for the interview on
05.07.1996 showing the marks secured by her in the qualifying examination as 60%
(which was the revaluation marks).
4. Petitioner accordingly attended the interview. She claims that at the time of
interview, she had produced the original certificate and Marks Card issued by the
University showing revaluation marks. Petitioner was not however selected. She
therefore gave a representation dated 22.08.1996 stating that she had secured 60 marks
in the qualifying examination and 20 marks in the interview, in all, 80 marks and that
a person (Second Respondent herein) who had secured lesser marks had been selected
under reservation category II(b). She therefore requested that her case may be
considered for selection and appointment. KPSC issued a reply dated 03.09.1996
station that as the revaluation marks of petitioner) were declared by the University
after 09.08.1995(which was the last date for submission of the applications), the
revaluation marks could not be taken into account and her case had been considered
on the basis of her original marks namely 56.25% and therefore she was not entitled to
selection under category II(b).
5. Feeling aggrieved, petitioner filed Application No. 2484/1997 before the
Karnataka Administrative Tribunal. The Tribunal dismissed the said application by
order dated 08.09.1998 on the ground that the matter was covered by the decision of
the Supreme Court in ASHOK KUMAR SHARMA Vs. CHANDRASHEKHAR &
ANOTHER (1997 (4) SCC 18). Feeling aggrieved, petitioner has filed this petition
and sought quashing the order of the Tribunal as also the endorsement dated
03.09.1996 and seeking a direction to first respondent to consider her total marks as
80% instead of 76.25% and review the selection of candidate under reservation
category II(b). She has also sought quashing selection and appointment of second
respondent who according to her, had secured lesser percentage than her.
6. As per the original marks card furnished with the application, the marks
secured by the petitioner in the qualifying examination was 56.25%. She applied for
revaluation and the University on such revaluation, declared that she had secured 60%,
vide certificate dated 29.07.1995, received by her on 19.08.1995. She claims that she
sent a copy of the said certificate dated 29.07.1995 as also the fresh marks card dated
11.08.1995 to KPSC under cover of letter dated 07.09.1995, by Regd. Post, Certificate
of Posting apart from serving them personally. The records of KPSC discloses that
they were received by the KPSC on 11.09.1995. The said revaluation marks (60%)
412
secured by the petitioner were taken note of by the KPSC and in the interview notice
sent on 14.06.1996, her percent in the qualifying examination was clearly shown as
60%. There is also nothing to disbelieve the petitioner's claim that she had produced
the original certificates ad marks card showing revaluation marks at the time of
interview in July 1996.
7. The documents produced by the petitioner which are found in the KPSC's file
make it clear that petitioner had secured revaluation marks of 60% and such
revaluation marks were declared on 29.07.1995 long before the last date (09.08.1995).
Mere fact that it was communicated to petitioner subsequent to 09.08.1995 does not
mean that the university had not granted the revaluation marks, before 09.08.1995.
Therefore, failure of KPSC to consider the petitioner's revaluation marks, on the
ground that such marks were declared after the last date for receipt of the applications
i.e. 09.08.1995 is incorrect. Consequently, the endorsement dated 03.09.1996
rejecting the request of the petitioner for consideration of the case, cannot be sustained
and has to be quashed.
8. Learned counsel for the KPSC has raised several contentions. We will deal
with each of them briefly.
9. First contention is that KPSC is bound to take note of the marks secured as per
the marks card furnished along with the application and not revaluation marks
disclosed in any marks card furnished to KPSC subsequent to the last date namely,
09.08.1995. Clause – 12 of the interview notice dated 14.06.1996 makes it clear that
KPSC will take note of the revised marks provided the same is supported by the
certificate issued by the University showing the revised marks and the date of
declaration of such revised marks. In this case, petitioner had in fact produced a copy
of the said certificate No. SU/Exam/ Rev./06.02.5634 dtd 29.07.1995 showing the
revised marks and the date of declaration thereof as 29.07.1995 along with her letter
dated 07.09.1995. Acting on it, KPSC had shown her marks in the qualifying
examination as 60%, in the interview notice. Further, the note sheet dated 27.08.1996
in the file shows that consequent upon the result of the revaluation notified by the
University under the communication dated 29.07.1995 (issued on 19.08.1995), the
consolidated marks card given to the candidate on 11.08.1995 was put up for perusal
and orders. Therefore, it is clear that revaluation marks were notified on 29.07.1995
prior to 09.08.1995. KPSC having taken note of the same as 60%, at the time of issue
of the interview notice, cannot now contend that it will take her marks as 56.25%
instead of 60%.
413
10. Learned counsel for the KPSC for the KPSC next relied on the decision in
ASHOK KUMAR SHARMA (Supra) wherein the Supreme Court held that where the
applications are invited, prescribing a particular date as last date for filing
applications, the eligibility of the candidate shall have to be judged with reference to
that date and that date alone and if a candidate acquires the prescribed qualification
subsequent to such prescribed date, such qualification cannot be considered. We do
not see how this decision is of any assistance to the KPSC. That was a case where a
candidate did not possess the requisite qualification as on the last date for filing
applications, but had passed the qualifying examination subsequent to the last date
prescribed for filing applications. Therefore, the Supreme Court held that such
qualification acquired after the last date cannot be taken into account. The facts are
completely different here. In this case, the petitioner had acquired qualification (M.A.
degree in Kannada) before the last prescribed for filing applications. Further, even the
revaluation marks were declared before the last date prescribed for filing applications.
11. Learned counsel for the KPSC next relied on the decision of the Supreme
Court in Dr. M.C. BINAL Vs. R.C. SINGH (1989(1) SCC 136) wherein it was held
that even though Public Service Commission provisionally recommends appointment
of a candidate on the ground that he fulfils the required qualifications, if it
subsequently finds on enquiry that the person so recommended does not possess the
essential qualification, it can withdraw the provisional recommendation and the
candidate concerned is not entitled to challenge the competence of Public Service
Commission. This decision again is of no assistance. It is not the case of the KPSC
that petitioner did not possess the requisite qualification and that it selected the
petitioner in spite of petitioner not possessing the qualification or that KPSC found
that petitioner did not possess the qualification after making such selection. In this
case, petitioner was not selected at all. Petitioner's grievance is that even though she
had produced the documents to show that her marks was 60% and the KPSC accepted
the same and issued interview notice showing her marks as 60%, her request has been
untenably rejected by taking marks in the qualifying examination as 56.25%.
12. Learned Counsel for the KPSC lastly relied on the decision of the learned
Single Judge in N. RAVISHANKAR Vs, STATE OF KARNATAKA (ILR 1987
KAR 847). in that decision, the learned Single Judge has held that if the results of the
qualifying examination had not been declared before the last date for filing
applications, mere fact that the applicant had appeared for the qualifying examination
before the last date will not be sufficient to hold that the applicant possessed the
414
qualification as on the last date. Learned Single Judge also held that principle of
relating back the result to the date of examination cannot be applied. This decision
again is of no assistance. This is not a case where the petitioner had not possessed
qualification at the time of application.
13. As noticed above, petitioner had produced the revaluation marks declared long
prior to the last date. It is no doubt true that the marks card and certificates were
produced subsequently. KPSC accepted the same and acted on it by showing her
marks as 60%. Having done so, it cannot now contend that the petitioner's revaluation
marks cannot be taken into account.
14. Learned counsel for the KPSC lastly contended that petitioner had not
produced the original revaluation marks card at the time of interview and therefore,
she cannot reply on the revaluation marks card. As pointed out above, this contention
is belied by the note dated 27.08.1996 in the file which clearly states that consolidated
marks card dated 11.08.1995 and the communication/certificate of the University
dated 29.07.1995 has been placed for perusal and orders of the Commission.
15. The Tribunal dismissed the application filed by the petitioner proceeding on
the basis that the matter was covered by the decision in ASHOK KUMAR SHARMA
cited Supra. As we have already pointed out that the said decision is inapplicable, the
order the Tribunal cannot be sustained.
16. We find that when the matter came up on 05.07.2001 for preliminary hearing
before another Division Bench, after hearing the parties, the Court had directed the
learned AGA to ascertain whether any post of Kannada Lecturer is available to adjust
the petitioner against such post to avoid displacing the second respondent who had
been in service for more than four years. In pursuance of the said order, learned AGA
filed a memo today with a letter from the Government stating that the 860 posts
notified (against which petitioner had applied) have bee fully filled up, and therefore
even though there are vacancies, she cannot be considered.
17. We have found that KPSC has rejected the claim of the petitioner on an
untenable ground. It is not in dispute that if petitioner's revaluation marks, namely
60%, and if the interview marks are taken into account, her marks would have been
more than the marks of the second respondent. However, as second respect has been
in service for more than four years, we fell that his selection should not be disturbed.
On the peculiar facts and circumstances, it will be appropriate to direct the third
415
respondents to consider the petitioner for appointment with prospective effect against
any of the existing vacancies, without disturbing the appointment of second
respondent.
18. Accordingly, we allow this petition and set aside the order of the Tribunal
dated 08.09.1998 in application No. 2484/1997 and quash the endorsement dated
03.09.1996 passed by the KPSC. We direct the first and third respondent to consider
the case of the petitioner for selection and appointment o the basis of her revaluation
marks. However, we make it clear that appointment shall be with prospective effect
without disturbing the appointment of respondent-2 already made. Compliance within
three months from the date of receipt of this order.
***
416
W.P.Nos.18702 & 25864 of 1997 D.D. 13.2.2002
Hon'ble Mr. Justice R.V.Raveendran Hon'ble Mr. Justice K.L.Manjunath
Karnataka Public Service Commission - Petitioner Vs. Lakshmana Gowda K.T. & Others – Respondents Recruitment to the post of Lecturer in the Department of Collegiate Education The petitioner who claimed weightage of 3% for the service as part-time Lecturer in the Government College did not produce the Experience Certificate either on the date of interview held on 6.6.95 or before the Final select list was published on 30.12.95. The Experience Certificate produced subsequently on 6.1.96 by the petitioner was not considered and he was not selected. The petitioner approached K.A.T. which passed a vague order directing the Commission to issue supplementary list stating that it is open to the State Government either to accept the said list or not. Aggrieved by the said order both the Commission and the petitioner filed the above writ petitions. The High Court allowed the writ petition filed by the Commission and dismissed the writ petition of the petitioner by upholding the decision of the Commission in not selecting the petitioner.
O R D E R
K.L.MANJUNATH, J:
These two petitions are arising out of the order passed by the Karnataka
Administrative Tribunal in Application No. 1193 of 1996. W.P. No. 18702 of 1997 is
preferred by KPSC, which was first respondent before the Tribunal and WP No. 25864
of 1997 is filed by the applicant in the said application. For convenience, we would
refer the parties to their respective ranks before the Tribunal.
2. The Application No. 1193 of 1996 was filed by the applicant being aggrieved
by non-selection of him as Lecturer by the first respondent (KPSC). First respondent
invited applications from qualified candidates for the post of Lecturers in different
subjects in the Government First Grade Colleges in the Department of Collegiate
Education. The applicant also submitted his application, but he was not selected,
when the first respondent published the selection list on 30.12.1995: he made enquiry
with first respondent as to why he was not selected, even though he had the benefit of
weightage of 3% concerning his service as part time Lecturer in Government College,
Mangalore. It was made known to the applicant that he had not furnished the required
certificate to prove part time service. Later on 06.01.1996, applicant submitted the
experience certificate to show that he had worked as part time Lecturer for a period of
three years at Government College, Mangalore.
417
3. Before the Tribunal, first respondent [KPSC] contended that the applicant did
not produce the required certificate well within time. According to KPSC, interview
was held on 06.06.1995 and final select list was published on 30.12.1995 and that the
applicant produced the experience certificate o 06.01.1996.
4. The Tribunal, after considering the contentions of parties, passed the impugned
order. The operative portion of the order reads thus:
"In the circumstances, we direct the Service Commission to issue a supplemental list in case the applicant would have been selected on the basis of his present claim. It is open to the State government to accept the said supplemental list or not for appointment, because the appointment shall have to be done mainly on the basis of the main select list. It is also open to the State Government to accept the list without disturbing the selection of the second respondent. Application is accordingly allowed".
Learned counsel for applicant contends that the Tribunal has committed an
error in not giving a positive direction to KPSC to select the applicant as Lecturer in
Kannada considering the weightage which he was entitled to as part time Lecturer. He
further contends that the Tribunal has committed an error in observing that:
"It is open to the State Government to accept the said supplemental list or not for appointment, because the appointment shall be done mainly on the basis of the main select list. It is also open to the State Government to accept the list without disturbing the selection of the second respondent". Based on the said observation, learned Counsel for applicant contends that the
Tribunal having come to the conclusion that the applicant is entitled to appointment as
Lecturer considering the benefit of weightage, should have given a positive direction.
6. Per contra, learned counsel for KPSC submits that the Tribunal having come to
the conclusion that the applicant has produced the certificate on 06.01.1996 should
have dismissed the application on the ground that the applicant did not produce the
certificate well in time. He relied on Rule 6(B) (a) of the Karnataka Education
Department Service (Collegiate Education Department) (Special Recruitment) Rules
1993 and contends that the applicant should have furnished the experience certificate
along with his application and in the present case, the applicant submitted the
certificate only after publication of the selection list. He therefore contends that in
view of late submission of experience certificate, there was nothing for KPSC to select
the applicant by considering the weightage, as claimed by the applicant.
7. Having heard both the counsel, what is required to be considered by us in these
petitions, is whether the applicant Lakshman Gowda is entitled for appointment based
418
on the experience certificate as part time Lecturer in Government College, Mangalore
and whether a positive direction has to be issued to KPSC to select him?
8. Facts of these cases are not in dispute. It is not in dispute that the applicant has
worked as part time Lecturer for three years. It is also not in dispute that he is entitled
for 3% weightage in accordance with his experience. It is also not in dispute that the
interview was held on 06.06.1995 and selection list was published on 30.12.1995.
Applicant is not in a position to explain the reason for not furnishing the experience
certificate well in time. In the circumstances, this Court cannot find any irregularity or
illegality in not selecting the applicant as Lecturer by KPSC. The Tribunal, though
held that the applicant had experience, has not issued any positive direction, only on
the ground that the certificate was not produced before finalization of selection of
selection list. In the circumstances, we hold that the Tribunal has committed error in
issuing a direction to KPSC to prepare a supplemental list and forward the same to
Government and giving discretion to the Government either to accept or reject such
supplemental list, without affecting the final list already published by KPSC. Hence,
we are of the opinion that the order of the Tribunal is required to be set aside.
9. In the result, we allow WP No. 18702 of 1997 and dismiss WP No. 25864 of
1997 and set aside the order dated 03.04.1997 passed by the Tribunal in Application
No. 1193 of 1996. Rule issued in WP No. 18702 of 1997 is made absolute and Rule
issued in WP No. 25864 of 1997 is discharged.
***
419
2003 (2) A.T.J. 415 Writ Petition No.2463 C/W 10774 of 1998
D.D. 27.5.2002
The Hon'ble Mr. Justice R.V.Raveendran The Hon'ble Mr. Justice K.Ramana
B.Suresh – Petitioner Vs. State of Karnataka – Respondents Constitution of India, Articles 311 and 318 – Administrative Tribunals Act, 1985 Section 15(1)(b) – Public Service Commission – Jurisdiction of Tribunal – Employees of Public Service Commission are appointed to civil services of the State – State Tribunal has the jurisdiction to entertain their application for redressal of grievances pertaining to service matters. Cases referred:
1. L.Chandra Kumar v. Union of Inida, AIR 1997 SC 1125 2. State of Gujarat v. Ramal Lal Keshavlal Soni, AIR 1984 SC 161:1983 Lab IC
391 3. R.N.A.Britto v. Chief Executive Officer, AIR 1995 SC 1636 4. Piar Chand v. Himachal Pradesh Public Service Commission, 1990(6) SLR 93.
JUDGMENT
Petitioner in WP No.2463/1998 was an employee of the Karnataka Public
Service Commission (for short 'KPSC') and he has filed this petition challenging the
order dated 23.10.1991 passed by KPSC imposing the punishment of compulsory
retirement. The petitioner in WP No.10774/1998 is an employee of KPSC and she has
filed her petition seeking promotion from the date her junior was promoted.
Petitioner in W.P.No.2463/98 had earlier approached the Karnataka
Administrative Tribunal in Application No.5594/97 seeking for the very same relief.
The tribunal by order dated 11.12.1997 disposed of the said application at the stage of
preliminary hearing on the following ground:
"The question of his seeking reliefs before the Tribunal does not arise in view of the fact that the KPSC as having not been notified as one of the authorities under Section 15 of the Administrative Tribunals Act. It is open for the applicant to agitate his rights before a proper forum."
In view of it, the Petitioner in WP No.2463/1998 has filed the said Writ
Petition. In view of the said order of the Tribunal holding that it had no jurisdiction to
entertain the petitions against KPSC the petitioner in W.P.No.10774/98 has directly
approached this Court without approaching the Tribunal first.
420
4. In both these cases, Learned Counsel for both parties submitted that the
preliminary question as to whether the Tribunal has jurisdiction to entertain the
applications in service matters relating to State Public Service Commission may be
considered and decided. All Counsel are of the view that the Tribunal has jurisdiction
to decide service matters relating to K.P.S.C. It is stated by the learned counsel for
K.P.S.C that subsequently the Tribunal has entered large number of applications
against K.P.S.C and decided them on merits. In fact, the Learned Single Judge before
whom these two petitions came up while passing the order dated 25.01.2001 referring
these petitions to the Division bench, to consider this question, has virtually held that
an application under Section 15 of the Administrative Tribunals Act, 1985 (for short
the 'Act') will be maintainable against the KPSC, before the Tribunal. However, as he
as a Single Judge, could not sit in Judgment over an order of the Tribunal having
regard to the decision of Supreme Court in L. Chandra Kumar V. Union of India,:
AIR 1997 SC 1125 has referred these matters to be Division Bench.
5. Section 15(1)(b) of the Act provides that the Administrative Tribunal for a
State shall exercise, on and from the appointed day all the jurisdiction powers and
authority exercisable immediately before that day by all Courts (except the Supreme
Court) in relation to all service matters concerning a person appointed to any Civil
service of the State or any Civil post under the State and pertaining to the service of
such person in connection with the affairs of the State or of any local or other
authority under the control of the State Government or of any Corporation (or society)
owned or controlled by the State Government. The question, therefore, is whether
appointment under the KPSC can be stated to be appointed to any Civil Service of the
State or any Civil post under the State.
6. Civil Service of the State includes all persons holding office under the State.
The holder of a 'Civil Post' is a person serving or employed under the State on the civil
side as distinguished from defence services.
(6.1) In State of Gujarat V. Ramal Lal Keshavlal Soni, AIR 1984 SC 161 a Constitution Bench of the Supreme Court held that the Panchayat Service constituted under S. 203 of the Gujarat Panchayat Act was a Civil Service of the State and the members of the service were Government Servants. Supreme Court observed: "It is neither politic nor possible to lay down any definitive test to determine when a person may be said to hold a Civil post under the Government. Several factors may indicate the relationship of master and servant. None may be conclusive. On the other hand, no single factor may be considered absolutely essential. The presence of all or some of the factors, such as, the right to select for appointment, the right to appoint, the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of
421
service, the nature of the duties performed by the employee, the right to control the employees manner and method of the work, the right to issue direction and the right to determine and the source from which wages or salary are paid and a host of such circumstances, may have to be considered to determine the existence of the relationship of master and servant. In such case, it is a question of fact whether a person is a servant of the State or not. (6.2) The Supreme Court in R.N.A. Britto V. Chief Executive Officer (AIR 1995 SC 1639):(1995 Lab IC 2254) considered the question whether Panchayat Secretaries are State Government Servants and whether they hold Civil post under the State within the meaning of Section 15(1) (b) of the Act. The Supreme Court held that they hold civil posts under the State and are entitled to invoke the jurisdiction of Tribunal for redressal of their grievances inn relation to their service matters, on the following reasoning (at page 1640-1641 of AIR): "The provisions in the Act to which we have adverted, clearly show that several functions which were required to be performed by the State are entrusted to the Panchayats. They also show that the properties vested in the Panchayats and the funds of the Panchayat are that of the Government and those collected by way to tax or fee by exercising the power of taxation vested in the Panchayat by the Government. Above all, provisions of the Act make it abundantly clear that the Panchayats have to function under the ultimate control of the State Government. When it comes to the Secretaries of the Panchayats appointed under the Act, their selection for appointment, their termination from service, their liability for transfer and all other conditions of their services are as provided for under the rules made the Act or their service as provided for under the Rules made under the Act or other Rules made under the Article 309 of the Constitution in respect of services of the State Government Servants..."
7. The primary tests therefore are (i) whether the duties which the employees of
PSC are required to perform are in connection with the affairs of the State (ii) whether
the expenditure towards their pay and allowances are met by the State; and (iii)
whether their service conditions (recruitment, pay, pension, disciplinary action etc) are
regulated by Rules made by the Government. If the said tests are applied, there can be
no doubt that the employees of the KPSC hold Civil Posts and they are appointed to
Civil Service of the State. Article 315 provides that there shall be a Public Service
Commission for the Union and a Public Service Commission for each State. Article
318 empowers the Governor of the State to make regulations for making provisions
with respect to number of members of the staff of the State Public Service
Commission and their conditions of service. Article 320 which enumerates the
functions of the Public Service Commission, provides that it shall be the duty of a
State Public Service Commission to conduct the examination for appointments to the
services of the State and also to assist the State in framing and operating schemes of
joint recruitment for any services for which candidates possessing special
qualifications are required. It also provides that the State Public Service Commission
422
may give advice in regard to the matters enumerated in Clause (3) of Article 320.
Article 322 provides that the expenses of Public Service Commissions, including the
salaries, allowances and pensions payable to or in respect of the members of the Staff
of the Commission shall be charged on the consolidated fund of India/State. The
functions performed by the Public Service Commission are those relating to the
services under the State. The service conditions of the employees of the State Public
Service Commission are provided under the Regulations made by the Governor under
Article 318 and their salaries are paid from the consolidated fund of the State. We are
therefore, of the view that the employees of the Public Service Commission are
appointed to a Civil Service of the State. Therefore, the State Administrative Tribunal
will have jurisdiction to deal with the applications relating to service matter
concerning employees of the Public Service Commission.
8. We are fortified in this view by decision in Piar Chand V Himachal Pradesh
Public Service Commission (1990(6) SLR 93) where a Division Bench of the
Himachal Pradesh High Court considered an identical question and held that service
under the Public Service Commission is a 'Civil Service' of the State and members of
its staff are holding Civil posts under the State. The following observations are
relevant:
"The State, referred to in Article 323-A and Section 15 of the Administrative Tribunals Act cannot be equated with the Government; the Government being only a limb of the State. It is true that the Public Service Commission is an independent body established under Article 315 of the Constitution. The functions of the Public Service Commission are enumerated in Article 320 of the Constitution. The Public Service Commission though independent of the Government is also an organ of the State Machinery and service under the State Public Service Commission part of the Civil Service of the State".
9. We, therefore, direct that these two Petitions be transferred to the Karnataka
Administrative Tribunal for disposal in accordance with law.
***
423
1996 KSLJ 553 KARNATAKA ADMINISTRATIVE TRIBUNAL
A.NOS.376/96 & Connected cases D.D. 19.4.1996
Hon'ble Mr. Justice K.Shivashankar Bhat, Chairman Hon'ble Mr. K.M.Ponnappa, Administrative Member
Ms. S.M.Kadali & Others - Applicants Vs. The Karnataka Public Service Commission & Ors. – Respondents
A. VALUATION – Valuation of the answer scripts of Gazetted Probationer Examination completed and results of the written examination announced on 6.8.1994 – On account of the large scale irregularities noticed and complaints received. Public Service Commission decided to cancel the valuation and resolved to value the papers once again – Decision of the Karnataka Public Service Commission to re-value the answer script once again upheld by the Tribunal in DEVEGOWDA AND OTHERS –Vs- SECRETARY, K.P.S.C. (1995 KSLJ 381) – In the fresh valuation, scheme of Central Valuation adopted and the results published on 28.12.1995 – (a) Contention that the valuation now done is to be treated as revaluation and the marks obtained thereunder shall have to be compared to the marks awarded at the first valuation, whether tenable? - - No – (b) Whether mode of Central Valuation adopted and the action of the K.P.S.C. in getting the model answers prepared by the Head Examiners ignoring the question paper setter, was legal and proper having regard to the provisions contained in the Manual published by the Service Commission? – Yes. B. RESERVATION – Process of recruitment of Gazetted Probationers notified prior to 1.1.94 – Government Order No.Íð°ð£ 251 •¨ 94 dated 31.1.95 revising classification of the backward class with reference to creamy layer – Contention that the said Government order dated 1.2.96 is inapplicable to the recruitments which were notified prior to 1.1.94 Whether tenable? – No. C. KARNATAKA PUBLIC SERVICE COMMISSION MANUAL – Instructions contained in the Manual – Whether directory and not mandatory? – Directory not mandatory. D. VALUATION – Adoption of method of moderation of the marks obtained in various subjects in order to assess the relative merit of the candidates – More number of questions in the papers pertaining to Mathematics and other Science subjects – The number of questions in Humanities and other Arts subjects far less as compared to other subjects – Candidates having option to choose the subjects – Candidates who took non-science subjects constituted large number of candidates called for personality test as compared to those who took Science and Mathematics – In the circumstances, can it be said that the valuation now done by the Service Commission is liable to be set aside for its failure to adopt a proper mode of moderation either subject-wise interse or interse examiners? – No. E. INTERVIEW – Candidate to be called for interview/personality test – Rule 9 of the Karnataka Recruitment of the Gazetted Probationers (Appointment by Competitive Examination) Rules, 1966 – The number of candidates to be called for interview 5 times the number as there are vacancies in the services, "as far as may be". Phrase "as far as may be" – Meaning of, - Explained. Sri. K.Shivashankar Bhat, Chairman, made the following Order:
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ORDER In these batch of Applications, the Applicants, who were candidates for
selection as Gazetted Probationers, question the process of selection adopted by the
Karnataka Public Service Commission, (‘Service Commission’, for Short). The main
challenge is to the valuation of the papers.
2. The State Government issued the Notification dated 24-7-1992 inviting the
applications for Gazetted Probationers, Group–A and Group–B posts in different
Departments of the State Governments. Examinations were held in July and
September 1993. On 6-8-1994, results of the written examinations were announced.
However, the Service Commission decided to cancel the valuations and resolved to
value the papers once again. The decision to revalue the answer scripts were
challenged in a batch of Applications and the decision of this Tribunal is reported in
DEVEGOWDA, A. AND OTHERS v. SECRETARY, KPSC, BANGALORE, (1995
K.S.L.J.381), (referred hereinafter as ‘previous decision). In the said batch of
Applications, some of the Applicants questioned the evaluation of the answer scripts
some questioned the evaluation of the answer scripts, some questioned the valuation
process of the examinations from the beginning to the end a few questioned the
decision taken to re-value all the answer scripts. This Tribunal up-held the decision
to re-value all the papers and, accordingly, the Notification dated 5-9-1994,
withdrawing the results declared as per the earlier valuation, was up-held. The
decision of the Service commission to re-value all the papers, except the papers on
which roll numbers were illegally written was also up-held. The decision to re-value
the papers on which roll numbers were illegally written was held as unjustified and to
that extent, decision was nullified. After the aforesaid decision, the Service
Commission decided to value the answer scripts of the all candidates once again and
adopted the system of central valuation. The valuations were completed the results
were published on 28-12- 1995. The marks obtained by each of the candidates were
also published. The present Applications were filed before this Tribunal questioning
these valuations.
3. The facts of each case are now stated in a nut shall as follows:-
4. Application No. 379 of 1966:-
The Applicant had appeared for Group-A examination only. She points out
that three subjects were compulsory for all the candidates, viz., (1) Essay, (2) General
English & (3) General Knowledge. She had also taken other subjects, viz., Indian
History, European History, Political Science, Indian History-II, and Political Theory.
In the earlier valuation, she has secured 917 marks out of the maximum marks of
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1450. Her rank was 20 in the merit list. The number of Group – A posts being 112,
Applicant had a very bright chance of being selected after the interview. In the
second valuation, impugned before us, now, Applicant has secured only 775 marks
and her ranking in the merit list will be around 160. Her chance of being selected is
drastically diluted. In further questions the decision of the Tribunal referred in the
previous decisions because she was not made a party in any of the Applications. She
also questions the power of the Service Commission to order re-valuation of the
Service Commission was to re-total’ the marks already given.
The Service Commission has filed a Reply Statement pointing out that the
Applicant was bound by the previous decision of this Tribunal, which up-held the
decision of the Service Commission withholding the results announced on 5-9-1994.
Applicant never questioned the said decision of the Service Commission and,
therefore, it is too late for her now to challenge the re-valuation ordered by the Service
Commission on 5-9-1994.
Since the first valuation was not properly conducted, the said valuation cannot
be a basis to evaluate the merit of the Applicant and the question of comparing the
marks secured by the Applicant in the first valuation would not arise. The Service
Commission pointed out that this Tribunal has given a categorical finding that there
was not proper valuation of the papers on the earlier occasion and the marks were
awarded erratically. It is further pointed that para- 3 (A) (6) of Appendix-VII of the
Manual pertains to a situation where the valuation is not a central-valuation. It covers
the cases of home-valuations. Central-valuation is not referred in the Appendix and the
Service Commission has ample power to evolve its own procedure to conduct an
examination, including evaluation of papers. It is pointed out that the Service
Commission decided to have the papers valued once again by the method of central-
valuation wherein the Examiners/ Head Examiners/Chief Examiners assemble in a
central place and the papers are evaluated by the Examiners. It is pointed out that a
list of Examiners were obtained from the several Universities including the Directorate
of Collegiate Education and from the said list. Examiners were chosen. For this
purpose, to avoid any angularities and vagaries in the matter of valuation, model
answers were prepared by the Chief Examiners who were well trained and proficient
in their respective subjects. There was also discussion between the Chief examiners
and other Examiners and appropriate guidance was given by the Chief Examiners. The
examiners, who valued the papers on the first occasion, were avoided and weeded out
for obvious reasons referred in the decision of this Tribunal on the earlier occasion. It
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is further asserted that the present re-valuation was nothing but a valuation and the
previous valuation shall have to ignored for all purposes.
The Service Commission also pointed out that there were one and a half lakhs
answer scripts on various subjects. There were 63 subjects. The Service
Commission decided to entrust the valuation of such subjects where the answer scripts
were around 300 and below to one Examiner who is the Chief-cum-Valuator. Where
the number of scripts exceeded 300, more number of Additional Examiners were
appointed. Where the number of valuators/ Additional Examiners exceeded 10, they
were divided into groups and for each group one Head Examiner was appointed, the
Chief Examiner. Normally, a person of the rank of professor of the University was
appoi8nted as the Chief Examiner. Where the answer scripts were in two languages
(English or Kannada), the Chief Examiner, who was competent in both, was
appointed. If the Chief Examiner was not well-versed in Kannada language, a person
who was well-versed in the said language was appointed as the Chief Examiner.
However, most of the Head Examiners and Additional Examiners were well-versed
and competent to teach the same subjects in both the languages.
The Service Commission pointed out that it entrusted the power of selecting
and appointing the Examiners to one of its Members, viz., Mr. Pereira, as per a
Resolution dated 24-4-1995. The said Member obtained the list of Examiners from
various Universities and Head Examiners. Wherever adequate number of Head
Examiners was not available, the senior-most profession/ selection Grade Lecturer.
Who had put in more than 25 years of service, was selected. Additional Examiners
were mostly Lecturers, Readers and Professors from various Universities, who had put
in more than 8 years of service in the subject involved. A day or two prior to the
actual commencement of the valuation work, the Chief and Head Examiners jointly
prepared model answer and on the forenoon of the day commencement of the
valuation, copies of the model answers were circulated among the Additional
Examiners. The scheme and model answer were discussed between the chief/Head/
Additional Examiners. They arrive at the method of valuation.
On the first day, each Valuer was given only 10 papers for valuation. After the
evaluation of the scripts by the Valuators, the Head Examiner valued the scripts once
again to find out whether the scheme adopted for valuation had been followed. If
there was any variation in the method of valuation, Head Examiner instructed the
Additional Examiners to rectify and follow the proper method. Thereafter, the Head
Examiner once again examined the answer scripts to find out whether his instructions
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were fully carried out. Thus, uniformity in the matter of valuation was guaranteed.
The Head Examiners supplemented the role of the Chief Examiners. On the second
day, more number of answer scripts were given for valuation. On all the subsequent
days, after the first day, the Head Examiners/ Chief Examiners used to select 30 % of
the papers entrusted to the Additional Valuers, to go through them. This 30 % is
carved out from various ranges, i.e., 10 % of the answer scripts were selected from the
higher ranks, another 10 % from the middle range and another 10 % from the bottom
range. Actually, in practice, it was found that where more than one Examiner valued
the answer scripts, generally, the marks awarded by each of them were same. If they
were not to be the same, the marks awarded by the Higher Examiner wax applied.
Since it was a central-valuation, where was no scope for any candidate to
manipulate.
The answer scripts were given code number. No Examiner could find out or
would know the name of the candidate who wrote the answer script valued by him.
In view of the constant supervision and verification by the Head Examiners and Chief
Examiners, the mode of evaluation was uniform.
A Re-joinder was filed by the applicant to the Reply Statement stating that
the Service Commission ignored the provisions of its Manual. She contended that
para- 9 Appendix-VII and Item No. 4 were to be the guiding factors and they were
ignored. She also contends that the model answers should have been prepared by the
Question-setter and not the Chief Examiner. On the second valuation, the Service
Commission has not acted as per the observations found in paras 19 and 28 of the
decision of this Tribunal in the previous decision. The Applicant further points out
that the difference is more than 10 % between the earlier marks and the present marks
and, therefore, and Experts should be appointed to value the papers once again. It is
further stated that several candidates, who did not find proper place in the previous list
of the results, are now found and some of them are placed quite high in the ranking.
Applicant also contended that this Tribunal should call for the scripts and peruse the
same. Applicant further contended that there was no proper method of moderation of
the answer papers and there should have been some method of scaling up or scaling
down the evaluations.
5. Application Nos. 654 to 656 and 625 of 1996:-
In these Applications, the Applicants contend that they are holders of hood
academic records and they have performed well in the written examinations. Most of
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them are Art students (who have taken Humanity subjects). Some of them appeared
in several competitive examinations successfully. They contend that the marks given
at the second valuation was the result of an arbitrary method adopted by the Service
Commission. They questioned the power of the Service Commission to order re-
valuation of the paper. They further contend that the Secretary of the Service
Commission did not discharge his functions but abdicated the same and the Deputy
Secretary of the Service Commission over-took the Secretary. No proper moderation
method was adopted. These Applicants also raised similar contentions as raised by
the Applicants referred by us already.
The learned Counsel for the Applicants repeatedly pointed out that the
candidates who took the subjects, like, History, Law and Political science, suffered
the most. It is also contended that the third Respondent, who is the Deputy
Secretary, was in-charge of the entire re-valuation work and he favoured his two
brothers-in-law, though their names are not known to the Applicants. In view of the
complaints lodged with the Service Commission the names of those brothers-in-law
were withdrawn from the select list.
In the Reply Statement by the Service Commission, there was a denial that
the brothers-in-law of the third Respondent were candidates and that the Service
Commission directed their withdrawal from the list; it was emphasized that Examiners
were appointed by Mr. Pereira, who was a Member of the Service Commission. The
third Respondent also denied the allegations made against him.
6. Applications Nos. 1104 to 1109 of 1996:-
The Application mainly contend that the relevant Government order
governing the reservation has not been followed by the Service Commission in
preparing the Select List. These Applicants also repeated the contentions raised by
the other Applicants questioning the propriety of ignoring paragraph-19 of the
Manual, failure of the Secretary of the Service Commission to discharge his functions,
arbitrariness in the mode of valuation, etc. It is also contended that the Chairman had
delegated his functions to the Secretary and that the Secretary could not have further
delegated it to the Deputy Secretary. Applicants have produced a Chart indicating the
difference between the first valuation and the second valuation to contend that in most
of the cases, the marks were drastically reduced on the second occasion.
To avoid repetition, we may point out here that almost all the Applicants
contended that each Valuer was compelled to value 30 answer scripts in the course of
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six hours in a day and each answer script had the maximum of 200 marks and it was
impossible to evaluate the answer script had the maximum of 200 marks and it was
impossible to evaluate the answer scripts at this rate of 30 answer scripts per six hours
and, therefore the valuation was done arbitrarily.
7. Application No. 841 of 1996:-
The contentions raised in this Application are also similar to the contentions
already referred by us. However, the Applicant has emphasized that each Examiner
has on an average of about seven minutes only to evaluate an answer script and this
resulted in arbitrary valuation.
8. Application No. 1611 of 1996 :-
The contention raised in this Application is quite different in the sense,
though the Application is quite different in the sense, though the Applicant questions
the propriety of the marks awarded to him, he suspects that his answer scripts were
exchanged by mistake either while giving the code numbers or while re-arranging the
papers. Hence, he requested the Service Commission to find out whether the papers
attributed to him were the papers written by him. He seeks the same relief from this
Tribunal also.
9. Application Nos. 652 & 608 of 1996:-
The Applicants herein repeat the same contentions as stated above.
10. Application Nos. 1418 of 1996 :-
The Applicants herein also repeats the same contentions stated above.
11. Application Nos. 1799 of 1996 :-
The Applicant, who is an Advocate at present, argued in person. According
to him, the several candidates, who appeared for the examinations, were relatives of
the Chairman, and Members of the Service Commission and a few were related to
highly placed persons, like the Ministers and high officials of the State. According to
him, those candidates were favoured by the Service Commission and its employees.
The question papers were leaked to them before the examinations were held. He
contends that principles of natural justice require that Chairman and Members of the
Service Commission, who are related to the candidates, to forbear from functioning,
before conducting the examinations. He has filed a suit in original suit No. 4802 of
1994 against the Service Commission questioning the validity of the very
examinations and, therefore, the Service Commission is prejudiced against him and, in
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the present impugned valuation, his marks are drastically reduced from 682 to 450 for
Group – A examination and 360 in place of 505 marks for Group-B examination. He
seeks a direction that there should be fresh examinations after setting aside the
proceeding held so far.
12. Application No. 1462 of 1996 :-
The applicant in this Application also raised the same contentions which are
already referred by us. A Chart is given by the learned Counsel to show the drastic
difference between the evaluation done on the first occasion and on the second
occasion. The valuation is attacked as defective, as contend by others also.
Similar are the contentions in Application Nos. 310 to 321 of 1996.
Application Nos. 1466 to 1468 of 1996:-
In these Applications, the contentions are not different.
Application Nos. 189 to 190 of 1996:-
Here also, the contentions are similar to the ones referred by us already.
So is the case with Application Nos. 673 & 674 of 1996.
13. Before referring to the contentions, we may also note here that the notified
posts to be filled up in Group-A are 112 and in Group – B the posts are 288. It is also
stated by one of the Applicants that there were about 26,000 candidates who took the
examinations.
14. The Service Commission has filed its Reply Statements in almost all the cases.
But, we referred to the Reply Statement filed in Application No. 376 of 1996.
Individual grounds raised in other Applications are specifically answered in the Reply
Statements filed in the respective Applications. For example, regarding the allegation
that the Secretary abdicated his functions and the Deputy Secretary actually functioned
as the Secretary, it is pointed out that the Secretary went on leave and, till he went on
leave, he was discharging his functions. It is also pointed out that the Service
Commission had allocated the internal works of the Service Commission to various
sections, which are under the supervision of the Secretary. The Service Commission
has also pointed out that the candidates who took the subjects in Humanities actually
fared better than the candidates who took Science or Mathematics and has given the
relevant figures to show that the Humanities’ candidates did not suffer in any manner.
The Service Commission also pointed out that a serious attempt was made to find out
feasibility of applying inter se subject moderation. But, it was found impracticable
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and also points out that as a matter of fact, no prejudice resulted by such lack of inter
se subject moderation. In other words, it is pointed out that even though, theoretically,
a science candidate may score a higher percentage and a Humanities’ candidate
cannot secure so high, still, in this examination, it was found that the Humanities’
candidates fared far better than the Science candidates.
15. Having regard to the rival contentions, the following questions arise for
consideration:-
(1) Whether the valuation now done is to be treated as re-valuation and the
marks thereunder should be compared to the marks awarded at the first
valuation for any purpose?
(2) Whether the mode of valuation adopted by the Service Commission was
proper and legal?
(3) Whether the Service Commission abdicated its function in any manner as
contended by the Applicants?
(4) Whether the instructions in the Manual of the Service Commission were
flouted and whether the instructions are mandatory in nature?
(5) Whether there was exchange of answer scripts of the Applicant in
Application No. 1611 of 1996?
(6) Whether the reservation order of the State Government has been ignored by
the Service Commission in preparing the Select List for any reason?
(7) Whether the number of candidates called for interview does not satisfy the
number prescribed by the relevant Rules? In other words, whether
excessive number of candidates are called for interview?
(8) Whether the evaluation now done by the Service Commission is liable to be
set aside for its failure to adopt a proper mode of moderation, wither subject
inter se or inter se Examiners?
16. RE. OUESTION NO.1 :-
The specific case of the Service Commission is that valuations done earlier,
which were withdrawn, cannot be taken into consideration for any purpose, the earlier
valuations were vitiated by several factors, as noted by this Tribunal in the previous
decision. In the eye of law, that was not a valuation at all.
On the previous occasion the Service Commission adopted the home-
valuation method, in the sense that answer scripts were sent to the Examiners to be
valued in their houses. There was no immediate supervision at the time of evaluation
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of the answer scripts. When the Service Commission directed the examination of the
answer scripts for which 70% and above were awarded, it was revealed that the
Examiners were either too generous or must have colluded with the candidates and
realized that the valuations were not done properly. The Service Commission
appointed a Committee to go into the question and, thereafter, decided to re-value the
papers. This was up-held by this Tribunal. The Tribunal specifically held that the
functions of the Service Commission were to select proper candidates and, if the
selections was invalid for any reason, it had the inherent power to re-do the exercise.
(vide: para-18, etc., of the previous decision).
As to the evaluations done on the earlier occasion, a specific finding was
given by this Tribunal that the marks were awarded in an erratic fashion in several
cases. In fact, this Tribunal had called for some of the papers and found that the
valuations were not done properly and, in one case, it was found that a professor in
Geology was asked to evaluate the answer scripts pertaining to English papers. We
quote the earlier findings fo the Tribunal in the previous decision at paras 85 to 91
(Pages 419 & 420 of 1995 KSLJ 381)
“85. Those papers with 70 % and more marks awarded at the first valuation were subjected to review. It was found in most of the cases, marks were awarded in an erratic manner. The difference between the original marks and marks on re-valuation were quite large. Each paper has the maximum mark of 200. There are instances where, the initial mark of over 140 had to reduced to 40 or even less. In the case of Advanced Sociology, the entire answer script deserved Zero; but the Examiner had awarded 140 marks. We perused the said paper written in Kannada and were satisfied that the first Examiner acted either with utmost negligence, or colluded with the candidate. In another paper in Mercantile Law, which was also in Kannada situation was not different; the first Examiner was over generous to one of the candidates. 86. In General Essay 1376 papers were reviewed by the Commission, each of which had been awarded 70 % and above by the Examiners. It was found that in 62 cases, marks to the extent of 30 or more had to be reduced. In one case 74 marks had to be reduced. In 48 cases, marks had to be enhanced. In Mercantile Law, 23 papers were reviewed. In all these cases more than 30 marks were reduced. In one case, 135 marks were reduced. In Geography, 52 papers were reviewed; for 35 papers reduction of mark was 30 or above. In one case, 76 marks had to be reduced. Seminar glaring differences were found in several other subjects. In Indian History, 30 marks and above were reduced in 115 papers and in one case 110 marks had to be reduced. The fate of Indian History-I was also similar. The Committee had listed 54 subjects in Annexure-I to its report giving the above details.
87. From this, we infer that similar erratic evaluation may have been
done, of other papers which were awarded less than 70 %. The
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unfairness in valuation cannot be attributed only to the papers which were subjected to review.
88. Prima facie case is made out that the evaluation at the first instance
was not properly done, at least in a few cases. If the Commission had ventured to review or revalue all other papers, the magnitude of the defect would have come to light more prominently. Instead of directing a general survey of review in all ranges, the Commission has found it practical and proper direct revaluation of all the papers. We cannot hold the decision of the Commission as arbitrary only on reground that the Commission also took note of the agitation launched by a few disgruntled candidates.
89. Under the circumstances, we, on our own, would have directed
revaluation of all the papers by a new set of competent Examiners, if the facts referred in this order were to be proved for the first time before us.
90. We have already referred to one instance where a few English papers
were evaluated by a professor in Geology.
91. There was no illegality or irregularity in the conduct of the examinations. Till the stage of sending the papers for evaluation, everything went on smoothly, though some of the Applicants contended otherwise, entire process of examination.”
The above observations make it clear that there was a clear finding about
the evaluation done on the earlier occasion being erratic and arbitrary. Therefore, this
Tribunal up-held the decision of the Service Commission to direct re-valuation of the
papers. The word ‘re-valuation’ used in the previous decision papers. The word “re-
valuation” used in the previous decision was only a description of the activity of
valuing the papers once again. The order of this Tribunal nowhere upheld the first
valuation. The clear implication of the finding was to set aside the entire valuation
done on the first occasion. Therefore, in the eye of law, the present valuation is the
only valuation which shall have to be treated as the first valuation. The description
given to the present valuation as “re-valuation” cannot be equated to the ‘re-valuation’
normally done in the Universities or in other examinations to compare the evaluations
done by the Examiners of a particular answer script. Therefore, according to us
marks awarded on the first occasion leading to the announcement of the result on 6-8-
1994 shall have to be ignored for all purposes.
It is impossible to sustain the argument which would permit the comparison
of an answer script, which was given 140 marks on the earlier occasion; but, which we
found as most undeserving and suspected that the Examiner colluded with the
candidate. We have already referred to para-85 of the previous decision on the
earlier occasion high-lighting the arbitrary nature of the valuation done on the first
occasion.
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Therefore, the contention of the Applicants based on the need once again to
compare the marks obtained on the first occasion with the marks now obtained and
them direct the valuation of the papers once again by an Expert, cannot be accepted at
all.
The first contention is, accordingly, rejected.
17. RE OUESTION NO.2 :-
While considering the second question, the Manual published by the Service
Commission may have to be referred. According to the Applicants, there was no
provision for central-evaluation. Appendix-VII to the Manual refers to instructions
to the Examiners. From these instructions, Applicants contend that only home-
valuation has to be done.
In the previous decision, this Tribunal has clearly held that the contents of
the Manual are not mandatory in Character. They are only for internal guidance of
the Service Commission and its officers. The Service Commission has appropriate
power to evolve a proper mode of conducting the examination and, if so a proper
mode of evaluating the papers of the candidates.
We are of the view that when the Service Commission is vested with the
power of selecting proper candidates for the Services under the State and is
empowered to hold the examinations for the said purpose, that empowerment would
include all incidental for which necessary powers to effectuate the object for which
power is given to the Service Commission. When it is found that the home-valuation
has resulted in arbitrary evaluation of the answer scripts, there is nothing wrong in
adopting the central valuation system. Central valuation system is one of the
recognized mode of evaluating the answer scripts. In fact, many of the Applicants
referred to a publication of the Association of Indian Universities called “Scaling
Techniques” by V. Natarajan & K.Gunasekaran. Para-5 of the said book-let refers to
the central valuation. In fact, the Authors suggested that central valuation of marking
the scripts may be introduced as many benefits accrue from it. The relevant para
reads,-
“ 5. It is suggested that Central Valuation of marking the scripts may be introduced, as many benefits accrue with it. Some of these are: (a) all the examiners are subjected to uniform working conditions,
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(b) examiners are given only a limited number of scripts valuation 25 in the morning session and 25 in the evening session are provided in most of the places where this procedure is adopted so that they could concentrate well in marking the scripts,
(c) it eliminates the chances of examinees approaching the examiners for favouring them with high marks (till the examiner starts valuation, he is not aware of the scripts that will be given to him for valuation),
(d) it will enable the Chief Examiner check constantly and rectify the mistakes of the examiners on the spot itself and take necessary action (in the conventional method of sending the scripts to the examiners’ houses, if they commit any mistake it can only be rectified (if at all identified) when the Board meets for finalization of the results. If the mistake has been committed uniformly in them have to be revalued within the short span of time which will give scope for the examiners to be erratic in valuation),
(e) it will enable the authorities to release the results the authorities to release the results within a short time and
(f) if any student applies for re-valuation/ re-totaling , the job can be done immediately as the scripts are with the examining agency.”
The question raised by the Applicants also would involve the examination of
the questions like the preparation of the model answers by the Head Examiner and
entrusting 30 or more papers to each Examiner everyday for evaluation.
The Head Examiner shall have to supervise the evaluation work. There can
be no doubt that the Service Commission has appointed Experts in the filed as the
Head Examiners. On this assumption, it has to be held that the Head Examiners were
competent to prepare the model answers. It is true that normally in the instant case,
the question-setters were ignored from the evaluation work, having regard to the
history of these cases. Therefore, the standard of evaluation shall have to be the
standard to be adopted by the Head Examiner who has to maintain the uniformity in
the evaluation work. No binding rule was shown to us which declares that the model
answers shall have to be prepared only by the question-setter. That may be the
normal mode adopted. But that need not be always the rule. Appropriate exceptions
to the said rule should be recognized and accepted. The Service Commission ahs
explained as to how the Head Examiner interacts with other Examiners. It has
pointed out that before the valuation work commenced, the Head Examiner circulated
the model answers and had discussions with other Examiners.
The learned Counsel for the Applicants contended that the model answers
should have been given to the other Examiners earlier so that they could have become
more familiar with the answers. We do not think so. The other Examiners are also
Readers, Lecturers or professors in the subjects concerned. They are Experts in their
academic field. They can pick-up the model answers as and when they are circulated
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to them. Apart from circulating the model answers, there were discussions between
the Head Examiners and other Examiners. Further, on the first day, each Examiner
was given only 10 answer scripts. The evaluation done was scrutinized by the Head
Examiners. The angularities if any, found were pointed out by the Head Examiner and
appropriate guide liner ; were issued to the other examiner. It cannot be said that 10
answer scripts per day cannot be comfortably valued. Every Examiner would become
familiar with the model answers on the very first day since he would proceed leisurely
and slowly on the first day having regard to the number of answer scripts.
It was then contended that the number of answer scripts on other days were
30 or more and it was not possible to evaluate them properly in the course of six
hours.
It should be noted that all the answer scripts will not be bulky. Further, a
person who is very familiar in a subject will be in a position to absorb the contents of
the answer scripts immediately. The reading habit which can be attributed to all these
Examiners would train them to go through the answer scripts within a short period.
A perusal of the question papers would show that all the answers need not
be lengthy. In fact, we had an occasion to go through the answer scripts of the
Applicant in Application No. 1611 of 1996. The answer scripts pertained to General
Knowledge, Essay and English and, as we saw them indicated that it was not
impossible to examine them at the rate of 30 per day (six hours).
In fact, the portion which we quoted from the book-let ‘Scaling Techniques’
by V. Natarajan & K. Gunasekaran, itself shows that normally 50 papers are evaluated
per day. The learned Authors state that only a limited number of scripts for valuation,
25 in the morning session and 25 in the evening session are provided in most of the
places.
Here, the number of papers are far less. Therefore, we reject the contention
that the Examiners could not have valued properly 30 papers per day.
The learned Counsel for the Service Commission submitted that if for any
reason an Examiner was not able to evaluate all the papers given to him, within the
working hours of the day, he was permitted to continue the work on the next day. No
time limit was imposed on any Examiner.
437
18. RE. MODERATION (ALSO RE. QUESTION NO. 8) :-
Another incidental question pertains to the alleged failure to apply any
method of moderation.
With regard to the inter se Examiner moderation, it should be noted here
that the valuation was done under the direct supervision of the Head Examiner and the
uniformity was achieved by the care taken by the Head Examiner. Unlike in the case
of home-valuation, where different Examiners sit at different places and there was no
immediate scrutiny of the evaluation work, in the case of central-valuation, the Head-
Examiner was immediately available and, in fact, it was his duty to bring about
uniformity. We are satisfied that such uniformity was brought about in the instant
cases, as explained by the Service Commission.
However, Mr.Prakash and a few other learned counsel for the Applicants
vehemently contended that inter se subject moderation should be adopted, for
example, in some mode of equating the marks of Mathematics candidate with the
marks obtained by a History candidate should have been evolved.
The Service Commission explained that it had actually appointed two
Experts from the Universities of Bangalore & Dharwad to find out the possibility and
practicability of evolving a solution to the inter se subject moderation question. It
was found that it was impracticable in the instant case. It was found that as a matter
of fact, no prejudice was caused to any candidate by any such lack of inter se subject
moderation. The Service Commission has pointed out that the candidates who took
up Humanities and Arts performed far better than other candidates and statistics in this
regard are furnished, in support of this contention.
It is also necessary to note here that even while preparing the question
papers of various subjects, more number of questions are asked in the cases of
Mathematics and other Science subjects. The number of questions in Humanities
would be far less as compared to other subjects. Candidates had the option to choose
the subjects, as optional subjects, though a few papers were compulsory and common
to all. In the case of optionals, the candidates, having accepted a particular subject,
cannot now contend that it was not possible to secure as much marks as secured by a
candidate who opted some other subject.
With regard to the contention that candidates, who took up Humanity & Law
suffered, as compared with those candidates who took up Science subjects, the Service
438
Commission has prepared as note giving the figures, of the number of candidates, who
appeared in each subject, as also the number of candidates notified for personal test.
From these figures, it was contended that those who took non-science subjects, who
are notified for personal test, constitute quite a large number as compared to those who
took up Science & Mathematics. We do not propose to examine the correctness of
these percentages for other reasons stated in this order.
We have already upheld the direction of the Service Commission
empowering the Head-Examiner to prepare the model answer and found that it has
achieved uniformity in the matter of valuation.
In this connection, it is necessary to note that the evaluation is always done
with reference to the ‘best’ answer to a particular question. There may be more than
one acceptable answer to a question. But the evaluation shall have to be done
keeping the best answer as the standard. This can be achieved if the Head Examiner
himself prepares the best answer so that he will be in a position to apply the standard
to evaluate the evaluation work done by all the Examiners.
We quote a passage from a judgment referred by James Hart in his ‘ An
Introduction to Administrative Law’, (Second Edition), at page- 193,-
“ A ‘best’ answer is something different from an acceptable answer. It is a relative matter and assumes, by the very employment of the work ‘best’ that there are alternatives of relative merit of which one is the best. As a civil service examination is intended to test relative merit, the kind of examination employed here, calculated to determine and test the discernment and judgment of the candidates in making a selection of the best of several alternatives is peculiarly appropriate. The entire virtue of such an examination, however, lies in the existence of an objectively best answer. It is obvious that if more than one answer to a question is accepted as best, an action which is antithetical, there is a denial of a rating based on relative merit. It can hardly be argued, therefore, that if a question is susceptible of a single best answer it is permissible to accept as best other answer which are not relatively as good.”
The question is, accordingly, answered against the Applicants.
19. That they also favoured the children and relatives of the Ministers and high
officials of the state.
The entire allegation is vague. No details are forthcoming. In the
previous decision, this Tribunal upheld the entire process of examination upto the
439
stage of valuation. The present allegation, therefore, should be examined only with
reference to the present valuations of the answer scripts. Only because a few
relatives of the Chairman of Members of the Service Commission were candidates, the
examinations cannot be nullified, unless it is reasonably proved that the Service
Commission acted in a manner favouring those candidates. It should be remembered
that the Service Commission is a constitutional functionary and not subordinate to the
State Government. In the absence of a clear pleading giving full details of
favouritism, it is impossible to examine the contention urged by the Applicant.
20. RE. OUESTION NO.4:-
The Instruction in the Manual are only instructions for the internal
administration of the Service Commission. It cannot be said that there is any
direction to have only home-valuation system.
In the previous decision of this Tribunal, (1995 K.S.L.J. 381), at paras 37 to
39, there is a clear finding that the instructions in the Manual have no statutory force
and that they are only directory and non-mandatory.
21. RE. OUESTION NO. 5 :-
Applicant in Application No. 1611 of 1996 suspects that his answer scripts
were exchanged or mixed up or some of the additional sheets on which answers were
written, were not valued. The learned counsel for the Service Commission submitted
that the Service Commission carefully examined the relevant answer scripts and even
consulted Hand-writing Experts to compare the hand-writing of the Applicant with
that of his admitted writing and found that there was no exchange or mix-up. All
sheets were properly valued. To satisfy us, the Service Commission produced all the
answer scripts of the Applicant and on perusal we found that all papers were written
by the same person and, prima facie, the hand-writing resembled that of the Applicant.
All additional papers were valued. In fact, in most therefore, there was no possibility
of Applicant using further additional papers. In a few answer scripts, the candidate
specifically wrote ‘end’, at the end of the answer scripts. All answers were valued.
A reading of his ‘ Essay’, ‘ General Knowledge and ‘ English’ answer
scripts, prima facie, indicate that the Applicant over–estimated his own merit. The
English sentences were, on many places, grammatically faulty and ideas conveyed
were hazy. The observations made in the previous decision pointing out that it is not
uncommon for the candidates believing themselves having done well in the
examination, requires to be repeated here.
440
In 1995 K.S.L.J. 381, at para-29 / page-400, this Tribunal held,-
“It should be remembered that there is a tendency in several candidates to be over-confident; they consider themselves as having performed extremely well in the examination- specially in the subjects, etc., where precise judging of the performance is not possible, unlike the cases of Mathematics and Physics. In these cases of self-assessments by the candidates, element of subjectivity over-shadows objectiveness required in testing the performance. This tendency results in developing suspicion about the fairness in the valuation done by the examiners and every minor mistake committed by the Examiner or by the authority conducting the examination is magnified to attack the fairness in the examinations.”
A perusal of all the answer scripts of this candidate also helped us to form the
opinion that it is possible for the Examiners to evaluate comfortably 30 to 40 answer
scripts in the course of six hours in a day.
The marks awarded on the first occasion were mostly at the end of each answer
on the marginal side of the answer sheet. They are covered by pasting paper pieces so
that on this occasion at the central-valuation, examiners could not read them.
Therefore, the contention of the Applicants, that, the present examiners would have
been influenced by the evaluation done on the first occasion, cannot be accepted.
22. RE. OUESTION NOS 6 & 7 :-
Rule 9 of the Karnataka Recruitment of Gazetted Probationers (
Appointment by Competitive Examinations) Rules, 1966, reads,-
“ Candidate to a called for Personality Test,-- The Commission shall call for a personality test, as far as may be, ten times the number of candidates as there are vacancies in the services in the services in categories I and II respectively, of schedule I in order of merit on the basis of the results of written papers subject to making provisions for calling candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Tribes and other Backward Classes to the extent vacancies are reserved for them.”
There is no dispute that the number of candidates to be called for interview,
referred as ‘ten’ has been amended, as ‘five times’.
The Applicants contend that the candidates listed for interview far exceeded
five time the number of posts to be filled up.
The Service Commission explained the position, by pointing out that if only
five time the number of posts are considered in abstract, it was impossible to consider
441
the cases of candidates belonging to the reserved categories and the latter part of the
above Rule required the Service Commission to consider this aspect also. The five
times number on the basis of merit in the written examination did not include requisite
number of those belonging to the categories of Scheduled Caste, Scheduled Tribes and
other Backward Classes and that in each category the candidates to be called for
interview shall have to be five times the posts to be filled up. The candidates
belonging to these reserved categories are to be first considered in the General merit
Category because they are entitled to compete for selection in that category also.
Further, Rule 9 of the said Rules does not prescribe an inflexible, rigid principle; it is a
rule of guidance.
We agree with the contention of the Service Commission. The Chart produced
by the Service Commission shows that it was necessary to call a large number of
candidates than five times the posts to be filled up. This part, Rule 9 of the said
Rules itself indicates that it is a rule of guidance; it states,-
“ The Commission shall call for a personality test, as far as may be, five times the number of candidates as there are vacancies……” ( Emphasis is ours.).
The phrase ‘ as far as may be’ vests a discretion in the Service Commission
to decide upon the number of candidates to be called for personality test, depending
upon circumstances situation in a particular case.
The Supreme Court construed this phrase, found in a Rent Control
Legislation in SUBRAMANIAM SHANMUGHAM v. M.L. RAJENDRAN AND
OTHERS, {(1987) 4 S.C.C. 215 = A.I.R. 1987 S.C. 2166}. The Court held that the
phrase means, ‘as the situation may be’.
Even otherwise, we fail to understand as to how the Applicants can question
the number of candidates called for personality test. They cannot restrain the number
of competitors. More the number, means a larger zone of consideration and there is a
chance of some extra-ordinary personality stepping into the field of consideration.
The contention of the Applicants is, accordingly, rejected.
23. RE. RESERVATION ORDER:-
Mr. Narasimhan contended that the relevant Government Order of
reservation is that of 31-1-1995 and the Service Commission has not applied the same.
442
The short answer is that, this Government order is not applicable to the recruitment
process notified prior to 1-1-1994. This is clear from Annexure ‘ A-7’ in Application
No. 1462 of 1996, which is the Government order dated 14-02-1996. This order
states that the classification of Backward Classes with reference to creamy layers is
applicable to recruitment process commenced after 1-1-1994. The Service
Commission also pointed out that the Government order giving the roster to be applied
cannot be ignored by the Service Commission. The roster is incidental to the
reservation order. We find considerable force in this contention.
Since the Government order dated 14-2-1966 is inapplicable to the
recruitment in question, which was notified prior to 31-1-1995, it is unnecessary to
examine this contention further.
In fact, none of the Applicants has shown as to how he or she is adversely
affected by the reservation order or the roster applied by the Service Commission.
Another contention seriously urged by Mr. Narasimhan is based on the
figures supplied by the Service Commission. There are 288 posts in Group-B. But,
the General Merit Category would get only 142 posts, instead of 144; this falls short of
50 %. In Other Words, the reservation in favour of Scheduled Caste, Scheduled
Tribes and Other Backward Classes results in giving them 146 posts, which is in
excess of 50 %.
Relying on the decision in INDRA SAWHNEY AND OTHER v. UNION OF
INDIA AND OTHERS, (A.I.R. 1993 S.C. 477), it was argued that reservation in
excess of 50 % is in constitutional.
The Service Commission points out that when the roster prescribed by the
State Government is worked out, the General Merit Category gets only 142 posts out
of 288, though the reservation order confines the total reservation to 50 %.
We are of the considered opinion that a marginal deviation from the
prescribed percentage of reservations cannot be nullified. It is true, the Supreme
Court has barred reservation in excess of 50 %. But, Appropriate working
accommodation shall have to be recognized, or, otherwise, reservation order read with
the roster cannot be properly implemented. The short-fall to the General Merit
Category is only 2 out of 144.
443
The learned Government Advocate submitted that it is premature to go into
this question of reservation until actual selections are notified for appointment;
whether reservation order is violated or not could be found out only thereafter and the
list now notified by the Service Commission is only the basis to call the candidates for
personality test. This submission of Mr. Mandappa, also, deserves to be accepted.
The entire picture will be clear only after the selections.
Since the recruitment process in the instant case started earlier, the relevant
Government order directing the reservations and the roster shall have to be applied
without reference to the fresh orders made revising them taking into consideration the
creamy layers.
24. Mr. Prakash contended that computers maintained State Government were
not used as envisaged in the Manual of the Service Commission and coding and
decoding done by the Service Commission must have, therefore, got vitiated. The
Service Commission submitted that it used its own computers and it competent
persons to operate them. We have just referred to the contention of Mr. Prakash only
to be rejected. There is nothing to show that coding and decoding resulted in errors
confusion. Applicants have created several ghosts of suspicious and seek this
Tribunal’s assistance to get rid of them.
25. Before parting with this batch of Applications, it necessary to state that the
learned Counsel for the Applicant cited several decisions in support of their
propositions. Since we have decided these cases mainly on facts and there is occasion
to apply the said decisions, we consider it suffice if we do not burden this order by
referring to those citation. Similarly, the Applicants have referred to a few Charts a
statistics to explain the margin of difference in the marks given at the first valuation
and the present valuation. The Service Commission has filed its own Chart disputing
the figure given by the Applicants. Again, here, we found, it unnecessary to quote
those figures in this order, having regard to finding that the impugned valuations
before us do not suffice from any kind of infirmity and the first valuation was not
properly done.
26. The learned Counsel for the Applicants repeatedly press us to call for all
the answer scripts and have them valued Experts in the subjects. They cited such
instances in Haryana. Some of the Applicants were prepared to meet all the expense
that may be incurred in this regard.
444
The valuations to be done by Experts at the instance this Tribunal will be
only under extraordinary situation, when the Service Commission cannot be trusted to
discharge in functions. Here, we have found, as a fact, that the Central Valuation
system now adopted was proper and valuation work done fairly. The Applicants
seem to be under the influence of their own subjective evaluation of their respective
merits, strengthened by the erratic valuations done on the firm occasion. It is neither
legal nor proper for us to take over the function of the Service Commission in the
guise of judicial reviewing the actions of the Service Commission.
27. Applications are, accordingly, dismissed without any order as to costs.
S.L.P. Nos. 12181-12186/1996 filed against the above order has been dismissed by the Hon'ble Supreme Court on 9.7.1996.
***
445
KERALA PUBLIC SERVICE COMMISSION
446
KERALA HIGH COURT O.P.No.20042 of 1998
D.D. 25.9.2000
The Hon'ble Mr. Justice K.A.Abdul Gafoor Jyothi.S.S. – Petitioner Vs. State of Kerala & Ors. – Respondents Government issued 2 Circulars Exts.P1 & P2 directing the Appointing Authorities not to terminate temporary appointees under Rule 9(a)(i) of KS & SSR General Rules with an intention to regularize the service of those who have worked as temporary appointees for more than 3 years – The said Circulars challenged as unconstitutional – Considering the scope of Rule 9 and Clause 5 of Kerala P.S.C. (Consultation) Regulations, the High Court has quashed the two Circulars as violative of Article 14 of the Constitution.
Held – Appointment to the post/service within the purview of P.S.C. if made without consultation of P.S.C. is illegal being contrary to Articles 320 and 321 of the Constitution. Further held – Stop gap appointees are temporary appointees do not have any right for continuance or regularization. Case referred: AIR 1992 SC 2070 Director, Institute of Management Development, U.P.Vs. Smt.Pushpa Srivastava
JUDGMENT The petitioner has approached this court challenging Exts. P1 and P2 circulars.
Ext. P2 circular dated 9.3.95 directed all appointing authorities not to terminate the
temporary appointees under Rule 9(a) (i) of the General Rule in KS & SSR in service
as on 13.1.1995. The intention as is revealed by Ext.P2 is to consider the question of
regularization of the provisional employees.
2. Ext. P1 is a circular dated. 17.3.1998 again issued by the Govt., as is
revealed from it, for collecting certain details of temporary appointees in the Govt.
Service as well as in the service of the Public Sector undertakings up to 1.1.1994 and
who have completed 3 years service for the purpose of regularization in service. When
such temporary appointees are regularised in service, the equality of opportunity as
enshrined in Art. 16 of the constitution of India for Public Employment, to the
persons at large who are unemployed will be defeated. Temporary employees are
appointed mainly through employment exchange depending upon seniority of
registration and not based on suitability or rendering opportunity to all the qualified
hands. In such circumstances persons who could accidentally get some temporary
447
employment and could continue because of some concessions made by the appointing
authorities or the Govt., cannot be allowed to cash out that temporary / casual
appointment to permanent appointment in civil service, defeating the equality of
opportunity guaranteed in part III of the constitution to others possessing equal or
more qualification suitability and entitlement than such temporary appointees.
3. As per Art. 320 of the constitution of India it is mandatory for any
appointing authority or Govt. to consult the Public Service Commission to effect
substantive appointments to the civil service. Employment in civil service gives
certain protection to the incumbents not only during the service period but also during
the retired life, and even after death in the form of family pension to the dependents
and minor children. Equality of opportunity as enshrined in Artl.16 of the constitution
shall be given to all the aspirants to compete in the recruitment process for regular
appointment. That right will be defeated if regularization as envisaged in Ext. P1 and
P2 is allowed to be materialized.
4. As per the Kerala Public Service Commission (Consultation) Regulations,
it is mandatory that the State Govt. and appointing authorities shall consult that
constitutional body before making appointment to Public Service. Rules 3 of the
General Rules in the KS & SSR makes it clear that;
All first appointments to the service shall be made by the appointing authority on the advice of the commission in respect of posts falling within the purview of the commission. " The posts in Govt. service against which temporary appointments are effected under
Rule 9 (a) (i) are the posts within the purview of the commission. When that is the
mandate of the Rules, Govt. cannot ignore that mandatory rule and direct
regularization of temporary appointees.
5. Temporary appointments on direct recruitment in Govt. service is
permissible under Rule 9(a) (i) of the General Rules.
" Where it is necessary in the Public interest, owing to an emergency which has arisen to fill immediately a vacancy. " and when there would be undue delay in making such appointments in accordance
with rules. So the temporary appointments are appointments made otherwise than in
accordance with the rules to meet certain emergent requirement. Such appointments
effected otherwise than in accordance with the rules of recruitment cannot be
regularized. They have to be " replaced as soon as possible by……an approved
448
candidates, "mentioned in rule 3 thereof, as provided in rule 9 (a) (iii) itself. So
temporary appointees are not eligible to be regularized in service.
6. Any temporary appointment can only be for 179 days in ordinary case or
for one year in the case of teaching posts or post in Health Department going by the
scheme in rule 9 of the General Rules in KS & SSR. Appointment for a further term is
not permissible in terms of last proviso to Rule 9 (a) (i). In such circumstances there
arise no situation, going by the rules, for continuance of temporary hand for three
years as mentioned in Ext.P1 or for "continuing in service for a long time" as
mentioned in Ext.P2. Such continuance if happened is in flagrant violation of the
provisions in Rule 9 (a) (i). There is no case that, regularization thought of in Exts.P1
and P2 is in respect of any category, where there is dearth of qualified hands.
Violation of rule by certain appointing authorities cannot benefit the appointees.
7. It seems that the Govt. is totally unaware of the provisions in clause 5 of
the Kerala Public Service Commission (Consultation) Regulations. Sub clause (1)
provides that it shall not be necessary to consult the commission for temporary
appointments not exceeding 180 days, meaning thereby consultation is obligatory for
appointments, beyond that period. The respondents have no case that such temporary
appointees are continued years together on consultation with the commission. Sub
Clause (2) reads as follows;
"In addition to the concurrence to be obtained under Clause (i) for the continuance of the temporary appointment of a person beyond the first one hundred and eighty days a second concurrence of the commission shall be obtained sufficiently in advance, if in any individual case, it becomes essential to continue such appointment beyond three hundred and sixty days. " Thus apart from 1st consultation for continuance beyond 180 days, a 2nd
concurrence also is necessary for appointment beyond 360 days. Thus continuance of
temporary appointees for years together without such consultations is totally illegal
violating all provisions of law to safeguard constitutional mandates. Consultation with
the commission is not an empty formality. It is a constitutional requirement in terms
of Articles 320 and 321 of the constitution of India. A Govt. regulated by rule of law
cannot think of such illegal continuance of temporary appointees. Much more is then,
the attempt to regularize them in service, simply because of such illegal continuance
violating several provisions of law as discussed above.
449
8. As per the Kerala Public Service (Additional Functions) Acts of 1963,1970
& 1973 appointments to most of the Public Sector Undertakings, companies and local
bodies in the State shall also be from the list drawn up by the PSC and consultation is
statutorily made mandatory in tune with Artl. 321 of the constitution of India.
Therefore the attempt of the Govt. to regularize the temporary hands in public sector
as proposed in Ext. P2 is illegal.
9. The contention of the Govt. pleader is that there happened certain
provisional employee to be continued for long and that certain temporary employees
had to be appointed in certain Public Sector Undertakings before appointment was left
to the PSC. Rules promulgated by Govt. say that there cannot have such continuance.
Even then it shall not be a reason to avoid constitutional and statutory mandates, as
mentioned above, to regularize the services of the temporary appointees who were
continued even beyond the time violating several of the rules made to ensure equality
of opportunity in public employment as mandated by the constitution of India.
10. Thus the attempt for regularization of temporary employees on the
ground that they had continued for three years or they are in service for a long time is
ultravires illegal and arbitrary. In such circumstances, the attempt to regularize
temporary hands as per Ext.P1 and P2 is violative of the right for equality of
opportunity as enshrined in Artl.16 of the constitution of India and it militates against
the constitutional and statutory requirements and mandates as mentioned above. More
over this Court as will as Supreme Court in several decisions pointed out that
temporary hands will not have any right for regularization. In the decision reported in
Director, Institute of Management Development, U.P. V. smt. Pushpa srivastava
(AIR 1992 SC 2070) the Apex Court has made it clear that stop gap appointees or
temporary appointees do not have any right for continuance or for regularization.
11. Exts. P1 and P2 are violative of Art.14 of constitution of India and are
arbitrary as well, on the aforesaid reason. It is beyond the power of the Govt.
Government themselves allowed the temporary hands to continue for long violating
several mandatory provisions of law. Persons illegally continued cannot steal a
premium. Nobody can be conferred a benefit on the basis of an illegality. Apart from
that Govt. cannot violate the rights of other persons for equal consideration. It is thus
beyond the power of Govt. Accordingly, Exts.P1 and P2 are quashed. The temporary
employees now continuing service shall be forth with terminated to ensure adherence
to the legal provisions, as mentioned above, regulating such appointments. Such
vacancies shall be immediately reported to the Public Service Commission for making
450
regular appointment. In case there is no list prepared by the Public Service
Commission in respect of any category or department, fresh appointment under Rule 9
(a) (i) shall be made limiting such appointment to the period mentioned in the said
rule.
Govt. shall see that these directions are complied with by all the appointing
authorities under it and by the public sector/ autonomous / local bodies and
Universities.
O.P. is allowed
***
451
OP No.3162 of 2001 (B) D.D. 28.11.2001
The Hon'ble Mr.Justice K.K.Denesan
Sobini T.V. – Petitioner Vs. State of Kerala & Ors. - Respondents
Petitioner a candidate for the post of Sub Engineer in the Kerala State Electricity Board has disputed her rank 568 in the merit list stating that she was expecting a place among first ten ranks. She has therefore sought for quashing of the rank list. The High Court has rejected the petition on 3 grounds; firstly, not a single person included in the rank list has been made a party; secondly, the plea raised by the petitioner is not based on any statutory provision and she cannot make such a demand as of right and thirdly, the petitioner cannot make use of the jurisdiction conferred on the Court to enable her to make a roving enquiry for the purpose of satisfying herself that her assessment about her own performance vis-à-vis others in the examination is correct or not. JUDGMENT
The relief prayed for in the original petition is to quash the ranked list No.
333/2000/SS III-20-12-2000 for the post of Sub Engineers in the Kerala State
Electricity Board published by the 2nd respondent – Public Service Commission and to
direct the 2nd respondent to verify whether the ranked list of Sub Engineers is in
accordance with the mark secured by the candidates in the written test and interview.
2. Pursuant to the notification issued by the 2nd respondent-commission
inviting application for the post of Sub Engineer (Civil) in the Kerala State Electricity
Board, petitioner applied for the post. Selection to the post was finalized by a written
test followed by an interview. Petitioner attended the written test held on 7-5-1997
and thereafter the interview also. The ranked list was published on 20-12-2000. The
name of the petitioner is included in the ranked list with Rank No. 568.
3. According to the petitioner the rank assigned to her is far below the rank
which she expected to get. She apprehends irregularities, manipulation or inadvertent
mistake or errors in the preparation of the rank list. Petitioner complains that there is
no arrangement made by the 2nd respondent- Commission to verify the correctness of
the ranked list and therefore mistakes that might have happened go unnoticed.
According to the petitioner the Commission has got a duty to disclose the marks
obtained by the candidates. It is averred in the original petition that the petitioner is
sure of getting a place among the first ten ranks in the ranked list and the present rank
assigned to her cannot be correct.
452
4. The original petition was adjourned enabling the learned counsel for the
Commission to get instructions. Accordingly, a counter affidavit has been filed on
behalf of the 2nd respondent. The allegation made by the petitioner that irregularities,
manipulation or inadvertent mistake or errors might have happened in the preparation
of the ranked list is denied in the counter affidavit. The counter affidavit further
proceeds to say that " the petitioner has been correctly ranked based on the marks
obtained by her. There are Checking and verification of the marks obtained by the
candidates both in the written test and interview before finalisation of the ranked list to
ensure accuracy at all stages. No manipulations have been committed by the
commission as alleged by the petitioner. "The counter affidavit further says that
inbuilt safeguards have been provided to eliminate any possible mistakes likely to
happen in the selection process and checks are being conducted at various levels to
avoid mistakes connected with the preparation of ranked list. The counter affidavit
proceeds to say that "after finalisation of the ranked list a special wing will inspect the
ranked list to know whether there is any mistake. This inspecting wing is not a party
at the time of preparation of ranked list. " The Commission has been following a
procedure based on rules framed on the basis of experience acquired for a very long
period.
5. I do not find any reason to reject the above submission of the 2nd
respondent – Commission as untrue or baseless. Petitioner's averments in relation to
the alleged irregularities etc., are in the realm of imagination and surmises. Her
subjective assessment about her own performance vis-à-vis others is evidently vague,
hypothetical and real. I am not convinced that the petitioner has made out even a
prima facie case for entertaining any doubt about the correctness of the ranked list
prepared and published by the 2nd respondent-commission.
6. Counsel for the commission points out that the examinations conducted by
the commission are different from those conducted by the Universities. The candidate
concerned has to face a competitive examination along with other candidates
possessing equal or better merit. The ranking is done based on the marks obtained by
the candidates in the written examination and interview. Even the smallest difference
in the marks between the competitors will result in great difference in the ranking.
The petitioner has entertained doubts and apprehensions without realizing the
difference between a competitive examination and a qualifying examination. She can
have assessment, though subjective, about her performance in the examination but she
cannot claim any such knowledge about the performance of others in the same
453
examination. Assignment of rank depends on relative factors. Merely for the reason
that the petitioner has not got a rank which she expected, it will not be a proper ground
for finding fault with the functioning of the commission.
7. Though the petitioner has sought for the issuance of a writ of certiorari to
quash the ranked list published by the 2nd respondent-Commission on 20-12-2000, not
a single person included in that ranked list is made a respondent in the original
petition. There is every likelihood of several included in that ranked list getting advice
for appointment and actually being appointed by this time. The rights of such
candidates will be prejudicially affected if the relief prayed for by the petitioner is
granted. This Court will not be justified in adjudicating the issue involved in this case
without those affected persons on the party array. On this sole ground the writ petition
is liable to be dismissed.
8. The 2nd respondent-Commission has sworn to the fact that it has verified
whether the ranked list in question was prepared in accordance with the marks secured
by the candidates in the written test and interview. Thus in effect the 2nd and 4th
prayers made by the petitioner in the original petition stand allowed.
9. The third prayer is that the Commission should be directed to make
available the marks scored in the written test and interview to the candidates in order
to make transparency in the preparation of rank list. I do think that such a direction
can be issued to the 2nd respondent-Commission without taking into account the
feasibility or making an overall assessment of the actual working of the commission
which is apparently undertaking a laborious task connected with the selection of lakhs
of candidates applying for appointment in pursuance of notifications published for a
large number of vacancies and posts. Learned counsel for the 2nd respondent-
commission submits that with the available infra-structure the commission is
performing the duties and functions bestowing utmost care to accuracy and
correctness. Notifications are published, due intimations are sent to the candidates,
applications are processed, written test and interview are conducted, short listing
wherever necessary is done and finally the rank list is published by the commission.
Increasing the workload beyond what is now being done will cause deficiency in the
present system of functioning. The Commission has made in-built safeguards in the
best interest of the candidates and to give error-free results. There are rules and
guidelines on the subject. Right to information or plea of transparency cannot be
stretched in the present state of affairs beyond what are thus provided by the
commission. Stretching further may lead to break down in the well-going system.
454
This court cannot issue orders unmindful of realities and feasibility. The plea raised
by the petitioner is not based on any statutory provision and she cannot make such a
demand as of right.
10. Based on the averments in the original petition the commission has
verified the correctness of the marks secured by the candidates vis-à-vis the ranks
assigned to them and it has been found that there is nothing wrong in the preparation
of the ranked list. Petitioner cannot make use of the jurisdiction conferred on this
Court to enable her to make a roving enquiry for the purpose of satisfying herself that
her assessment about her own performance vis-à-vis others in the examination is
correct or not. It is open to the petitioner to make an assessment about her own
performance in the written test and interview but she cannot make any such
assessment about the other candidates who have appeared for the written test and
interview. She can only make a subjective assessment and there is every likelihood of
she going wrong in making similar assessments about the performance of others.
Assignment of rank being a relative one, her expectations about the marks she may
score cannot form the foundation for importing allegations of manipulations etc.
against the 2nd respondent - Commission.
11. I am not satisfied that the petitioner is entitled to the reliefs prayed for by
her.
The original petition has no merits and it is accordingly dismissed.
***
455
OP No.33500 of 2001 (K) & connected cases D.D. 29.11.2001
Hon'ble Mr.Justice K.A.Abdul Gafoor
Jane Serene & Ors. – Petitioner Vs. State of Kerala & Ors. – Respondents
Qualification
Qualification prescribed for the post of Librarian Grade II or Grade III as per recruitment notification was Degree in Library Science from a recognized University or Diploma in Library Science. Petitioners possess Degree in Library Science awarded by Indira Gandhi National Open University – Their applications were rejected on the ground that they acquired the Degree through distance education. The High Court holding that Library Degree possessed by petitioners has been awarded by IGNOU which has been established by an Act of Parliament and as the notification does not insist that the Degree so awarded shall be through regular study, has allowed the petition and directed the PSC to consider their applications. In Writ Appeal Nos.747 & 749/2002 filed by the Kerala P.S.C. against the above order, the Division Bench as per judgment dated 29.7.2002 has confirmed the judgment of the Single Judge by dismissing the appeals. JUDGEMENT The petitioners in these original petitions have applied pursuant to different
notifications issued by the PSC for the post of Librarian Grd. II or Grd.III. All of
them possess degree in library science awarded by the Indira Gandi National Open
University (IGNO) established as per Indira Gandhi National Open University Act,
1985. The relevant notification inviting application contained a clause regarding the
qualification insisted by the PSC. As per the notification the required qualifications
are degree from a recognized university and degree in Library Science from a
recognized university or Diploma in Library Science. Their applications has been
rejected on the ground that they acquired their degree through distance education and
therefore could not be considered. In certain cases the candidates were asked to
produce certificate to the effect that the degree in Library Science that they possess as
awarded by the Indira Ganghi National Open University is one recognized by any of
the Universities in Kerala or that it is awarded by regular study. The petitioners are
aggrieved by these communications and contend that the notification does not stipulate
anything in that regard.
2. What is stipulated in the notification is that the degree in Library Science
shall be awarded by a recognized University. The respondents cannot either say that
456
Indira Gandhi National Open University established as per an Act of the parliament is
a recognized one. Therefore their case shall be considered for selection. As is noticed
from the relevant notification what is required is a degree in Library Science awarded
by a University. Indira Gandhi National Open University has been established by an
Act of Parliament, necessarily that degree is awarded by a recognized University. The
notification does not insist that the degree so awarded shall be through regular study
and shall not be through correspondence study nor that it shall be recognized by any
of the Universities in Kerala. If that be so there shall be specific stipulations in
unambiguous terms in the notification concerned. There is no such stipulation in the
notification.
Accordingly, I am of the view that the communications issued by the PSC to
the candidates concerned either rejecting their applications or insisting them to
produce certificate of equivalence or recognition or certificate regarding whether they
acquired it through regular study are illegal and therefore to be quashed. Accordingly
such communications are quashed. There shall be direction to consider the case of the
petitioners as if they are duly qualified in terms of the notification. If any of the
candidates does not come within the eligibility criteria to be included in the short list,
necessarily they need not be subjected to further steps of the selection process.
O.P. is disposed of.
***
457
W.A. NOS. 747 & 749 OF 2002 D.D. 29.7.2002
The Hon'ble Mr.Justice Cyriac Joseh
The Hon'ble Mr. Justice K.Thankappan The Kerala P.S.C. – Appellant Vs. Reena G. – Respondent JUDGMENT 1. A common question arises in these two writ Appeals and therefore they are
being disposed of through a common judgment.
2. The Public Service Commission is the appellant in the appeals. The
challenge in the appeals is against the common judgment delivered by the learned
single judge in O.P.Nos. 31897 and 32782 of 2001.
3. Pursuant to Notification issued by the Public Service Commission, the
petitioners in the original petition applied for the post of Librarian Grade II / Grade
III. As per the Notification issued by Public Service Commission the qualifications
required for the post are: (i) a degree from a recognized university and (ii) a degree
or diploma in Library Science. Admittedly the petitioners possess B.Sc. degree from
a recognized university and a degree in Library Science awarded by the Indira Gandhi
Open University established as per the Indira Gandhi National Open University Act,
1985. However, the applications of the petitioners were rejected by the Public Service
Commission on the ground that they acquired their degree in Library Science through
distance education. Aggrieved by the rejection of their application by the Public
Service Commission, the petitioners filed the original petition. The learned single
judge set aside the orders of the Public Service Commission rejecting the applications
of the petitioners and directed the Public Service Commission to consider the case of
the petitioners as if they are duly qualified in terms of the Notification. Challenging
the decision of the learned Single Judge, the Public Service Commission has filed
these appeals.
4. Having heard learned Counsel for the appellants and having considered
the materials placed on record, we find that the Notifications issued by the Public
Service Commission did not make any distinction between a degree in Library Science
obtained after undergoing a regular course and a degree in Library Science obtained
through distance education. In the absence of a specific requirement that the degree in
Library Science should have been obtained after undergoing regular course, the Public
458
Service Commission was not justified in rejecting the applications of the petitioners
only on the ground that they did not obtain the degree in Library Science after
undergoing a regular course. Therefore, the learned single judge was right in quashing
the communications sent by the Public Service Commission rejecting the applications
and giving a direction to the Public Service Commission to consider the petitioners as
if they are duly qualified for the post. Hence, there is no merit in the appeals and the
appeals are dismissed.
5. Learned Counsel for the appellants submits that it may be clarified that the
impugned judgments or the judgment in these appeals will not stand in the way of the
Public Service Commission insisting on possession of degrees obtained after
undergoing regular courses in future. No such clarification is necessary since the
Public Service Commission is competent to insist on possession of the qualifications
required under the rules. If the rules require a degree obtained after undergoing a
regular course and not through distance education and if such a requirement is
specified in the notification issued by the Public Service Commission, nobody can
prevent the Public Service Commission from insisting on such requirement.
***
459
O.P No.1205/2000 (R) D.D. 29.1.2002
Hon'ble Mr. Justice K.Balakrishnan Nair
Shibu Raghavan – Petitioner Vs. Kerala P.S.C. & Anr. – Respondents. Held – Normal Rule is that documents relating to age, qualification, experience etc., should be produced along with the application for the post – Documents produced after finalisation of the rank list cannot be considered. JUDGMENT The petitioner applied for the post of Sub Engineer in the Kerala State
Electricity Board. But the PSC rejected his application on the ground that he is under
aged. His date of birth in the SSLC book as per the original entry was 30.1.1976. At
the time of submission of the application, the document produced to prove the age
showed that his date of birth is 30.1.1976. But, later by Ext. P3 he got the date of birth
corrected in the SSLC Book as 9.7.1975. The said correction was permitted as per the
order of the Joint Commissioner of Government Examinations dated 17.7.1999. By
that time, the rank list was published on 8.2.1999. The petitioner submitted a
representation for reconsideration of his name for inclusion in the rank list on the basis
of the corrected date of birth. But the said claim was considered by the PSC as
directed by this court in Ext.P5. But, the PSC by Ext. P6 rejected it. The reason for
the rejection is that subsequent claim and proof are not acceptable regarding the date
of birth.
2. I heard both sides. I find nothing wrong in the stand taken by the PSC in
Ext.P6. The petitioner should have at least put forward his claim submitting
documents before the finalisation of the rank list. The normal rule is that these
documents should be submitted along with the application. Even going by the
principle contained in Rule 17 C. he did not submit the documents before the
finalisation of the rank list. The stand of the PSC cannot be said to be so
unreasonable warranting interference under Article 226 of the constitution of India.
The original petition fails and the same is accordingly dismissed.
***
460
O.P No.5358 of 2002 (K) D.D. 6.3.2002
Hon'ble Mr. Justice K.Balakrishnan Nair
P.V.Udayakumar & Ors. – Petitioners Vs. The State of Keral & Ors. – Respondents
Held – Currency of select list being 3 years under Rule 13 of Kerala P.S.C. Rules of Procedure appointment can be made from the select list during the currency of the list. The petitioner being a provisional appointee his claim for regulrisation has been rejected. Case referred:
AIR 2001 SC 2900 State of Punjab v. Raghbir Chand Sharma
JUDGMENT The petitioners are provisional conductors working in the Kerala State Road
Transport Corporation. They were appointed in January and February, 1999 on the
advice of the Employment Exchange. They have filed Ext.P7 representation claiming
regularization in service. Provisional appointees like the petitioners have no right to
claim regular appointment. Only candidates advised by the Public Service
Commission can be appointed on a regular basis. Relying on the decision of the Apex
Court in State of Punjab V. Raghbir Chand Sharma (AIR 2001 SC 2900), the
petitioners submit that from the PSC list, candidates can be appointed only to the
vacancies notified by the Public Service Commission. Rule 13 of the Public Service
Commission Rules of procedure expressly provides that the period of the rank list will
be normally three years and vacancies arising during the currency of the rank list can
be appointed from the list. The said Rule is not under challenge. Therefore, the
petitioners cannot successfully challenge the appointment made in excess of the
vacancies notified. Apart from that, none of the persons appointed through the Public
Service Commission is made a party to the original petition. Therefore, the original
petition is devoid of any merit and the same is accordingly dismissed.
***
461
SUPREME COURT OF INDIA Civil Appeal No.2199-2200/2002
D.D.13.3.2002
Hon'ble Mr. Justice S.Rajendra Babu Hon'ble Mr. Justice P.Venkataramareddi
Jyothi K.K. & Ors. – Appellant Vs. Kerala P.S.C. & Ors. - Respondents
Held – When a qualification is prescribed under the relevant Rules, the same cannot be in any manner whittled down and a different qualification cannot be adopted – Higher qualification acquired must clearly indicate or presuppose the acquisition of the lower qualification prescribed for the post in order to attract Rule 10(a)(ii) of Kerala State and Sub-ordinate Rules 1956. If a person has acquired higher qualification in the same faculty such qualification certainly be stated to presuppose the acquisition of the lower qualification prescribed. O R D E R Delay condoned in filling SLP(C) Nos. 13684-13685/2001. Leave granted.
These appeals arise out of an order made by the High Court in original
petitions filed under Article 226 of the constitution.
The Kerala Public Service Commission invited applications for selection to
the post of Sub-Engineers (Electrical) in the Kerala State Electricity Board as per the
notification dated 21-6-1994. The said notification provided that the qualifications
for the post would be as follows:
"1. SSLC or its equivalent. 2. Technical qualifications:- a) Diploma in Electrical Engineering
of a recognized institution after 3 years course of study. or b) A certificate in Electrical Engineering from any one of the recognized Technical School's shown below with five years service under Kerala State Electricity Board. (Not fully extracted as not relevant) or
c) MGTE / KGTE in electrical light and power (higher) with five years experience as II Grade overseer (Electrical) under the Board." The appellants before us are holders of B.Tech. Degree in Electrical
Engineering or Bachelor's Degree in Electrical Engineering. On the basis that the
462
appellants did not possess the necessary qualifications. The commission held that they
were not eligible for selection. In the writ petitions, the same having been challenged,
it was contended that they possess higher qualifications and therefore non
consideration of their cases is not correct. They sought for a direction to the
Commission to consider them as eligible candidates. It was also pointed out that ever
since the inception of the Board, persons possessing higher qualifications have been
considered and appointed in terms of Rules 18 of the Kerala State and Subordinate
Services Rules 1956 and the Board having accepted higher qualifications to be
applicable in all such cases could not exclude them in the present cases.
The commission contended before the Higher Court as is done before us now
that the graduates in Engineering or persons possessing other qualifications, as held by
the appellants, that may not be taken as higher qualifications, they are not equivalent
qualifications prescribed for that post and persons who possessed higher qualifications
can only be taken note of in cases where they acquired such higher qualifications after
acquiring the prescribed qualifications. Rule 10 (a) (ii) of part I of the Rules was also
adverted to contend that such of those higher qualifications which presuppose the
acquisition of the lower qualifications prescribed for the post shall be sufficient for the
post. The qualifications, it was stated, possessed by the appellants do not presuppose
the acquisition of the prescribed lower qualifications and, therefore, they were not
eligible to be considered.
On the question that the said Rules are applicable to the selection posts in the
Board, there is no dispute. The High Court after setting out the contentions noticed
that there were no executive orders in relation to equivalent qualifications prescribed
by the Government. The High Court stated that the position is that the qualifications
possessed by the appellants do not presuppose the acquisition of prescribed lower
qualifications and when qualification has been prescribed for a post, the same cannot
be diluted and persons not possessing those qualifications cannot be permitted to be
eligible. It was noticed that all those who had similar or even better qualifications
than those candidates would not have applied for the post because they did not possess
the qualifications mentioned in the advertisement and such a position would result in
"fraud on public to appoint persons with inferior qualifications, in such circumstances,
unless it is clearly stated that qualifications are relaxable ". On that basis the High
Court dismissed the petitions filed by the appellants. The contentions urged before the
High Court are retiterated on either side before us.
Rule 10 (a) ( ii ) reads as follows:
463
"Notwithstanding anything contained in these rules or in the special Rules, the qualifications, recognized by executive orders or standing orders of Government as equivalent to a qualification specified for a post in the Special Rules and such of those higher qualifications which presuppose the acquisition of the lower qualification prescribed for the post shall also be sufficient for the post." It is no doubt true, as stated by the High Court that when a qualification has
been set out under the relevant Rules, the same cannot be in any manner whittled
down and a different qualification cannot be adopted. The High Court is also justified
in stating that the higher qualification must clearly indicate or presuppose the
acquisition of the lower qualification prescribed for that post in order to attract that
part of the Rule to the effect that such of those higher qualifications which presuppose
the acquisition of the lower qualifications prescribed for the post shall also be
sufficient for the post. If a person has acquired higher qualifications in the same
faculty, such qualification can certainly be stated to presuppose the acquisition of the
lower qualifications prescribed for the post. In this case it may not be necessary to
seek far. Under the relevant Rules, for the post of Assistant Engineer, Degree in
Electrical Engineering of Kerala University or Other equivalent qualification
recognized or equivalent thereto has been prescribed. For a higher post when a direct
recruitment has to be held, the qualification that has to be obtained, obviously gives an
indication that such qualification is definitely higher qualification than what is
prescribed for the lower post, namely, the post of Sub-Engineer. In that view of the
matter the qualification of Degree in Electrical Engineering presupposes the
acquisition of the lower qualification of Diploma in that subject prescribed for the
post, shall be considered to be sufficient for that post. In the event the Government is
of the view that only Diploma holders should have applied to post of Sub-Engineers
but not all those who possess higher qualifications, either this rule should have
excluded in respect of candidates who possess higher qualifications or the position
should have been made clear that degree holder shall not be eligible to apply for such
post. When that position is not clear but on the other hand Rules do not disqualify per
se the holders of higher qualifications in the same faculty, it becomes clear that the
Rule could be understood in an appropriate manner as stated above. In that view of
the matter the order of the High Court cannot be sustained. In this case we are not
concerned with the question whether all those who possess such qualifications could
have applied or not. When statutory Rules have been published and those Rules are
applicable, it presupposes that everyone concerned with such appointments will be
aware of such Rules or make himself aware of the Rules before making appropriate
464
applications. The High Court, therefore, is not justified in holding that recruitment of
appellants would amount to fraud on the public.
However, we must notice one-aspect of the matter. The Diploma holders
who had been selected by the Public Service Commission have already been appointed
and, therefore, it would not be appropriate for us to disturb those appointments. They
shall continue in such appointments. Such of those eligible Degree holders who fulfill
the qualifications referred to above and found suitable to be appointed shall be
appointed taking note of the vacancies which are available within a period of three
months from the date of receipt if this order.
Subject to what is stated above, these appeals shall stand allowed. No orders
as to costs.
***
465
O.P.No.13894 of 2002 (D) D.D. 7.6.2002
Hon'ble Mr. Justice K.Balakrishnan Nair
S.Pradeep & Ors. – Petitioners Vs. Kerala State Road Transport Corporation & Ors. – Respondents
The petitioners are persons appointed provisionally for a period of 179 days in KSRTC have filed this petition for a direction not to terminate their services to accommodate P.S.C. candidates – They also sought for quashing of Section 3 of the Kerala P.S.C. (Additional Functions as respects of KSRTC) Act, 1970, as ultra vires. The High Court has rejected the petition observing as under:
"Article 321 expressly enables the State Legislature to legislate providing to entrust, inter alia, the recruitment to any body corporate constituted by law or any public institution to the State Public Service Commission. It is not in dispute that KSRTC is a body corporate constituted by law and it is a public institution. Therefore, the legislation is one fully within the competence of the State Legislature"
JUDGMENT The petitioners are persons appointed provisionally for a period of 179 days in
the KSRTC. It is submitted that they are retained in service with one day's break on
completion of the spell of every 179 days. This original petition is filled seeking a
direction not to terminate their services to accommodate Public service
Commission hands. A declaration is also sought that the provisions of section 3 of the
Kerala Public Service Commission (Additional Functions as respects of KSRTC) Act,
1970 is ultravires of the power of the State Legislature. The brief facts necessary for
the disposal of the case are the following:
2. The petitioners are parties to OP NO. 37878/2001. This court as per order
in CMP NO.62078/2001 in the said original petition directed to terminate all
temporary ad hoc appointees, Employment Exchange hands, empanelled hands and to
appoint PSC hands in their place. The said order is produced as Ext. P1. The
petitioners herein filed CMP NO. 4222/2002 praying to vacate Ext.P1 order. The
said CMP was dismissed by this Court by Ext.P3 order and issued further directions
regarding the posting of persons included in the PSC list. They challenged Ext.P3
order before the Supreme Court and the same was dismissed as withdrawn by Ext.P4.
Libtery was given to them to take appropriate remedies available under law.
Thereafter, the petitioners have filed this original petition. Since they are already
parties to OP NO. 37878/2001, it is doubtful whether this fresh original petition is
466
maintainable at their instance. But, I am not disposing of the original petition on this
technical ground.
3. The petitioners submit that section that section 3 of Act 3 of 1970 is
ultravires of the powers of the State legislature for the following reasons:
1. According to the petitioners, the provisions of Act 3 of 1970 are repugnant to the provisions of the Road Transport Corporations Act, 1950 2. In view of the provisions of Article 254 of the constitution of India, the petitioners submit that the provisions of Act 3 of 1970 cannot prevail over the parliamentary enactments. 3. The Regulations framed by the KSRTC under Section 14 (3) (b) will prevail over the provisions of Act 3 of 1970. 4. Learned counsel relied on Sections 14(3) (b) and 45 (2) (c) of the Road
Transport Corporations Act, 1950. Sections 14(3) enables the corporation to frame
regulations regarding conditions of appointment and service and the scales of pay of
employees of the Corporation. But, such regulations will be subject to the directions
issued by the Government under section 34 relating to recruitment and conditions of
service of employees. The power to frame regulations on the above subject is further
reiterated in Section 45 (2) (c). Till 1970, the recruitment of employees to the
Corporation, was being done directly as per the Regulations framed by the
Corporation. When there were serious allegations of corruption in the matter of
recruitment, the State Legislature stepped in and invoking its power under Article 321,
Act 3 of 970 was framed. Article 321 expressly enables the State Legislature to
legislate providing to entrust, inter alia, the recruitment to any body corporate
constituted by law or any public institution to the State Public Service Commission. It
is not in dispute that KSRTC is a body corporate constituted by law and it is a public
institution. Therefore, the legislation is one fully within the competence of the State
Legislature. The contention of the petitioners that the Central Act enacted under Item
44 of List 1 of the VII th Schedule will prevail over the State Act is ex facie
unsustainable. Both the legislations operate on different fields. They relate to
different subjects. Repugnancy arises when both the Legislature enact laws in relation
to the same subject in the concurrent list. So, the first contention of the petitioners
fails.
467
5. The second contention is also bound to fail, as Article 254 of the
Constitution deals with legislation by the parliament and State Legislature on the same
subject in the concurrent list.
6. The third contention is equally devoid of any merit. The KSRTC has
not framed any regulations providing for direct recruitment by it without consulting
the Public Service Commission. In exercise of its power under Sections 14(3) (b)
read with Section 45 of the Road Transport Corporations Act, the KSRTC has
adopted the provisions of KS & SSR. Rule 3 of the KS & SSR provides for direct
recruitment on the advice of the PSC. Therefore, there is no conflict with the
Regulations framed by the KSRTC regarding recruitment and also regarding the
provisions of Act 3 of 1970 of the State Legislature.
Therefore, the original petition is devoid of any merit and the same is
accordingly dismissed.
***
468
O.P.No.9235 of 2001 (Y) D.D.16.7.2002
Hon'ble Mr. Justice K.Balakrishnan Nair
Prasanth Raghavan - Petitioner Vs. State of Kerala & Anr. – Respondents The last date for receipt of application for the post of Medical Officer, Ayurveda was fixed as 22.11.2000 in the notification dated 1.11.2000 with an instruction to see the detailed instructions contained in the notification in the Gazette dated 26.9.2000. The petitioner has contended that the Gazette Notification reached the library in his neighbourhood only on 12.1.2001. Therefore, he sought for a direction to P.S.C. to extend the last date. The High Court rejected the petition by holding that the notification should be taken as published when it was made available in the PSC offices and published in the PSC bulletin. JUDGMENT This petitioner is a graduate in Ayurvedic medicine. He is eligible to
apply for appointment to the post of Medical Officer, Ayurveda under the first
respondent. The second respondent Public Service Commission issued Ext.P3
notification inviting application for the said post along with other posts. The last date
for receipt of application was 22.11.2000. In the said notification petitioner submits
there is a stipulation that the application form should be filled up after going through
the detailed instructions contained in the notification in the gazette. The gazette
notification is Ext.P5 dated 26. 9. 2000. The petitioner submits the same reached
the library in his neighbourhood only on 12.1.2001. The said submission is made on
the basis of the seal affixed on the gazette copy by the staff of the library. The
petitioner submits thus the notification can said to be published only on 12.1.2001.
Therefore he was not able to apply in time. On the above pleadings it is prayed that
there may be a direction to PSC to extend the last date for submission of the
application. There is also a prayer to direct the second respondent of receive the
petitioner's application.
2. I heard the learned standing counsel for the second respondent also. It is
submitted that the notifications were available in all the offices of the PSC. It was also
published in the PSC bulletin also.
3. That a notification can said to be published only when it is available for
the public is a well settled position. Relying on that principle, the petitioner submits,
469
the notification in this case should be taken as published only when it reached the
library in his neighbourhood. The said contention is plainly untenable and cannot be
accepted. The seal affixed on Ext. P5 may be long after the receipt of the notification
in the library. Further, receipt of the gazette by one of the subscribers cannot be taken
as the date of publication of the notification. If such contention is accepted, every
selection made by the PSC can be unsettled. The notification can be taken as
published when it was made available in the PSC offices and published in the PSC
bulletin. The contention of the petitioner to the contrary is plainly untenable.
Therefore, the OP fails and it is accordingly dismissed.
***
470
OP No.20949 of 2001 (R) & W.A.No.11 of 2002 (B) D.D. 12.11.2002
Hon'ble Mr. Justice J.B.Koshy
& Hon'ble Mr. Justice K.Thankappan
Dr. Sumi Mitra.S. – Petitioner Vs. The Kerala P.S.C. & Ors. – Respondents
Petitioner (Appellant) holding rank No.18 and another candidate holding rank No14 in the select list prepared by P.S.C. for recruitment to the post of Excise Inspector were advised for appointment by PSC against posts reserved for Ezhava community. As the candidate with rank No.14 did not report for duty, another community candidate was appointed. The claim of the petitioner that seniority has to be adjusted by shifting him to rank No.14 has been rejected by the High Court by observing as under:
"Merely because a candidate of the same community with rank No.14 who was advised in the same list did not join duty, the petitioner who was rank No.18 cannot shift to that position, even though a person from that community will get appointment in the non-joining vacancy."
Cases referred:
1. 1976 KLT 227 P.J.Grace v. State of Kerla and Another 2. 1981 K.L.T. 321 Narayanan v. State of Kerala JUDGMENT Since the question involved in the writ appeal and the original petition are
one and the same, we dispose of both the cases together even though dates of advice
are different. We may first consider the facts as well as the points involved in
W.A.NO.11 of 2002. Appellant/ petitioner was advised by the Kerala Public Service
Commission for appointment as Excise Inspector. Appellant belonged to Ezhava
community and his position in the rank list was 18. One Salim Raj, another Ezhava
candidate was also in the rank list holding rank No. 14. Respondents 4 to 6 took the
intervening vacancies, viz. Position 15 to 17. After advice, Sri. Salim Raj informed
the Public Service Commission that he is not joining duty. Appellant's contention is
that when Sri. Salim Raj did not join duty, a readjustment was necessary so that the
right of Ezhava candidate is protected. It is not disputed that when Salim Raj did not
join duty another Ezhava candidate in the rank list was given advice in the non-joining
vacancy. The only question is whether refixation of seniority is possible and whether
petitioner who is holding rank No. 18 can be refixed as rank No. 14 as the Ezhava
candidate holding rank No.14 did not join duty. The appellant relied on the decision
in Narayanan V. State of Kerala (1981 K.L.T. 321) Wherein it was held that if a
candidate belonging to a reservation community is not. joining duty on that account
471
that community will loose that right. That is not disputed by the Public Service
Commission also. The question is whether seniority list will be changed.
2. Interse seniority is governed by Rule 27. Rule 27 (a) part II of the Kerala
State and Subordinate Service Rules reads as follows:
" 27. Seniority:- (a) Seniority of a person in a service, class, category or grade shall, unless he has been reduced to a lower rank as punishment, be determined by the date-of-the order of his first appointment to such service, class, category or grade. " Rule 27 (c) provides as follows:
" (c) "Notwithstanding anything contained in clauses (a) and (b) above, the seniority of a person appointed
to a class, category or grade in a service on the advice of the commission shall, unless he has been reduced to a lower rank as punishment, be determined by the date of first effective advice made for his appointment to such class, category or grade and when two or more persons are included in the same list of candidates advised, their relative seniority shall be fixed according to the order in which their names are arranged in the advice list. " 3. Therefore, Seniority has to be fixed by the date of effective advice and
if two or more persons are included in the same list of candidates advised the list of
seniority shall be fixed in the order in which their names are mentioned in the advice
list. Petitioner was N0.18 in the rank list and he will be entitled to get seniority
position in that order only. Merely because a candidate of the same community with
rank No. 14 who was advised in the same list did not join duty, the petitioner who was
rank No. 18 cannot shift to that position, even though a person from that community
will get appointment in the non-joining vacancy. The matter is covered by the
Division Bench decision of this Court in P.J. Grace V. State of Kerala and another
(1976 KLT 227). Reservation and rotation is covered under Rule 15. In the above
decision the Court held that purpose of Rule 15 is to protect or preserve the right of a
particular community or group of communities entitled to a particular quota of
reservation by assuring that it does not miss that quota in case a suitable candidate of
that community or group of communities does not become available for selection.
But, there is no further provision that there will be a restoration of the rank or there
will be further assumption of a fictional date for commencement of service of the
candidate selected later. The rule does not contemplate anything more other than
protection by carrying forward the turn missed by a particular community or group
and does not envisage projecting back the date when once the benefit of such turn is
given at the earliest possible opportunity. The communities interest is protected. At
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the same time seniority shall be counted only under Rule 27 (c). In view of the above
decision, when the candidate advised, who was holding rank No. 14, does not join
duty that fact has to be reported to the Public Service Commission and Public Service
Commission should consider the question of advising another person from the same
category against that vacancy. But that will not give seniority to the newly advised
candidate over the persons already advised.
4. In the impugned judgment the learned Single Judge held as follows:
"Rule 27 (c) is clear in that the seniority of a person appointed to a class, category or grade in a service on the advice of the commission shall, unless he has been reduced to a lower rank as punishment, be determined by the date of first effective advice for his appointment to such class, category or grade and when two or more persons are included in the same list of candidates advised, their relative seniority shall be fixed according to the order in which their names are arranged in the advice list. If Rule 27 (c) is applied strictly to the facts of the present case, there cannot be any doubt that the petitioner will be junior to respondents 4 to 6. " The learned Single Judge also noticed that if another interpretation is possible that will
upset the seniority position in various departments and lead to serious complications.
We accept the dictum laid down by the learned Judge which is consonance with the
judgment of this Court in 1976 KLT 277 (supra) and Rule 27 (c) mentioned earlier.
Therefore, the writ appeal is dismissed. The challenge raised by the
petitioner in the original petition also fails on the same ground. Therefore, the original
petition is also dismissed.
***
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MADHYA PRADESH PUBLIC SERVICE COMMISSION
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Madhya Pradesh Public Service Commission has sent a list of some decisions of the Supreme Court of India and other High Courts relating to recruitments to various Services, promotions and other service matters with gist of subject matter and decision thereon as under:
Sl. No.
Case Subject matter Decision/held
01 AIR 1966 SC VP Shrivastava & Others Vs. The State of MP & Others
Promotion – approval by PSC interse seniority – direct recruits and promotees.
Appointment of respondents on promotions not having made following the procedure laid down by the RR of 1065 and even though continuing in the post uninterruptedly the PSC having not approved their appointment – direct recruits must be held senior to the respondents.
02 High Court of MP Dr.BP Pawar & Others Vs. State of MP & Others
Reserve List: purpose of -
The purpose of maintaining reserve list is very limited and obviously it does not cover the subsequent vacancies that may occur after the post advertised have been filled in.
03 AIR 1969 SC 220 K.Appa Rao Vs. Director of Posts & Others
Reservation: In order to get the benefit of being a member of a Scheduled Caste or Scheduled Tribe in the matter of public employment – the person claiming it should be a member of such - caste or tribe in relation to the particular area or State where he is residing and where he seeks employment.
04 1985(4) SC 417 Ashok Kumar Yadav & Ors. Vs. State of Haryana & Ors.
(i) Member of PSC natural justice
(ii) Interview – Allocation of marks.
(i) Viva voce test – close relations of some members of PSC appearing for interview before it – Members should not take part in interviewing their relatives (ii) Where the Competitive examination consists of a written examination followed by a Viva Voce test, the marks allotted for Viva Voce test shall not exceed 12.2% of the total marks taken into account for the purpose of selection.
05 AIR 1987 SC Surjit Das & Others Vs. Chairman UPSC & Others
Estimations – System of Moderation
The system of moderation of marks adopted and followed by the Union Public Service Commission in evaluating the performance of the candidates appearing for the Civil Service examination cannot be said to be vitiated by the arbitrariness or illegality of any kind.
475
06 AIR 1989 SC 132 Tapan Kumar Roy Vs.The Convencer Engineering and Medical Common entrance test, HP University
Scheduled Castes and Scheduled Tribes: President's Notification – under
President cannot notify All India Scheduled Castes or Scheduled Tribes. Notification of castes can only be on State basis and not on All India basis.
07 AIR 1990 SC 348 Direct recruit Class II Engineering Officers Association Vs. State of Maharashtra
Seniority & Promotion: Direct Recruits & Promotees – Interse Seniority
Where appointment made in accordance with rules, seniority is to be counted from the date of such appointment and not from the date of confirmation. Where initial appointment not made by following procedure laid down by the rules but appointee continues in the post uninterruptedly till regularization of his service in accordance with the rules, period of officiating service will be counted.
08 AIR 1990 SC 1923 DV Kapoor Vs. Union of India & Others
Pension : Withholding of -
Condition precedent to with-holding of pension in whole or in part or recovery of pensionary loss from pension subject to the minimum is that there should be a finding that the delinquent is guilty of grave misconduct or negligence in the discharge of public duty.
09 AIR 1990 SC 130 Merri Chandra Shekhar Rao Vs. Dean, Seth GS Medical College & Others
Reservation : Benefit of – on migration
A person who is recognized as a member of SC/ST in his original State will be entitled to all the benefits under the Constitution in that Stat alone and not in all parts of the country where he migrates.
10 AIR 1991 SC 624 Dr. Uma Kant Vs. Dr.Bhika Lal Jain & Others
Reserve List: validity of -
Persons included in the reserve list shall be considered to have been duly selected for appointment and entitled to be considered for appointment if any vacancy exists during the validity of reserve list.
11 AIR 1992 SC 689 State of MP Vs. Srikant Chaphekar
Promotion – interference of Tribunal/Court
It is not the function of the Tribunal to assess the service record of a Government servant and order his promotion on that basis. It is for the DPC to evaluate the same and make recommendations based on such evaluation. In case where the Court/Tribunal comes to the conclusion that a person was not considered for promotion or the consideration was illegal then only direction which can be given is to reconsider his case in accordance with law.
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12 AIR 1993 SC 575 Indra Sawhney Vs. Union of India
(i) Reservation – percentage of – (ii) Minimum qualifying marks – fixation of – (iii) Reservation for Backward Classes in Promotion
(i) Reservation under Art.16(4) should not exceed 50% - Relaxation of 50% rule only in extraordinary situation. (ii) It may be permissible for the Government to prescribe a reasonably lower standard for SC/ST/Backward Classes – consistent with the requirement of efficiency of administration – it would not be permissible not to prescribe any such minimum standard at all. While prescribing the lower minimum standard for reserved category the nature of duties attached to the post and the interest of general public should also be kept in mind. (iii) Reservation for Backward classes – Not permissible in promotion – State can extend concessions and relaxations to members of reserved categories in matter of promotion, but could not prescribe lower qualifying marks or lesser level of evaluation for reserved categories.
13 AIR 1994 SC 1484 Jamail Singh Vs. The Secretary, Ministry of Home Affairs & Others
Pension/Gratuity: With holding of -
The term pension includes Gratuity except when the term pension is used in contra distinction to gratuity.
14 AIR 1994 SC 358 action Committee on issue of caste certificates to SC/ST in the State of Maharashtra Vs. Union of India & Others
Reservation: Benefit of – on migration – where nomenclature of caste is same
A person belonging to a caste or tribe specified for the purposes of the Constitution to be SC or ST in relation to that State. A migrates to State B where a caste or tribe with the same nomenclature is specified for the purpose of the Constitution to be SC or a ST in relation to that State B, that person will not be entitled to claim the privilege and benefit admissible to person belonging to the SC and/or ST in State B.
15 AIR 1994 SC (Civil Appeal No.6103) MPPSC Vs. Navnit Kumar Podar & Others
Selection process short listing of candidates
Short listing does not amount to changing or altering of the criteria prescribed in the Rule but is only a part of the selection process. Where selection is to be made purely on the basis of interview, if the applications for such posts are enormous in number with reference to the
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number of posts available to be filled up, then the Commission of the selection Board has no option but to short list such applications on some rational and reasonable basis.
16 AIR 1995 SC 4309 Union of India & Others Vs. Virpal Singh Chawhan
Reservation – (i) Operation of roster (ii) Power of State – nature of
(i) Reservation of posts in favour of SC and ST - Operation of roster is to be given effect till number of posts reserved for SC and ST are filled by operation of roster – Determination of number candidates of reserved category selected on their own merit are not to be counted as reserved category candidates. (ii) Power of State – Nature of – It can provide that candidate promoted earlier by virtue of rule of reservation on roster shall not be entitled to seniority over his senior in feeder category and that when candidate senior to him in feeder category is promoted, he will regain his seniority over reserved candidate.
17 O.A.Nos.606/97, 719/97, 85/99 and 936/99. Order passed by the SAT M.P. on 17.07.00
Reservation in promotion – Roster thereof
Roster of the State of M.P. quashed and directed to follow central policy regarding roster in the matter of promotions
18 AIR 1996 SC 3352 Smt. Nutan Arvind Vs. Union of India and Others
Promotion: assessment made by DPC
Supreme Court cannot sit over the assessment made by DPC as an appellate authority. DPC on consideration of respective merits of candidates found appellant candidate not fit for promotion – No interference.
19 AIR 1997 SC 188 State of Tamil Nadu Vs. A.Gurusami
Caste Certificate – Principle of Estoppel
A person who plays fraud and obtains a false certificate cannot plead estoppel.
20 AIR 1997 SC 2324 State of Punjab & Others Vs. GS Gill and Others
Reservation – Single promotional post.
Application of roster to single post cadre and appointment by promotion to carry forward post is valid and Constitutional.
21 AIR 1998 (4) SC 110 AC. Aggrawal & Others Vs. Faculty Association & Others
Reservation – Single post cadre – At. 14, 15, 16 – reservation not permissible
Until there is plurality of posts in a cadre, the question of reservation does not arise because any attempt of reservation by whatever means and even with device of rotation of roster in a single cadre post is bound to create 100% reservation of such
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post whenever such reservations are to be implemented.
22 AIR 1997 SC 2618 Durga Devi and another Vs. State of MP & Others
Selection – Interference with – Jurisdiction of SAT
Power to judge comparative merits of candidates and fitness for post –is function of duty constituted Selection Committee. Tribunal cannot sit as appellate Court and quash selection by itself scrutinizing comparative merits of candidates.
23 AIR 1997 SC 2619 K.Jayamohan Vs. State of Kerala & Another
Appointment –Right as to – Appointments made to number of posts advertised
Candidate in question kept in waiting list – He cannot claim right of appointment merely because he is kept in waiting list.
24 O.A.No.755/99 R.K.Shrivastava Vs. State of M.P. and Others) order dated 27.5.2002 of the SAT M.P.
Non-promotion owing to lowering down the grade assigned in the CRs by the authorities concerned.
To lower down the grading from excellent to very good by the DPC is improper unless some proper reason is assigned by the DPC
25 W.P.No.5766/98 (Rajneesh Kumar Jain Vs. State of M.P. & Othrs (Copy enclosed) – Full order is set out below
Relaxation in age limits for practicing Advocates/Inservice candidates whether discriminatory? Reservation and special relaxation in upper age limit for women candidates as per Rules of the State Government for Civil Judges.
No. No relaxation in age limits other than prescribed in the recruitment rules can be granted. No reservation/relaxation in age limit can be granted to women as to the rules concerned have not been framed in consultation with the High Court under Article 234 of the Constitution.
THE COURT OF JUDICATURE, MADHYA PRADESH : AT JABALPUR
WRIT PETITION NO.5766 OF 1998
Rajneesh Kumar Jain Vs. State of M.P. and Others Held – No relaxation in age limits other than prescribed in the recruitment rules can be granted. Further held – No reservation/relaxation in age limit can be granted to women as to the rules concerned have not been framed in consultation with the High Court under Article 234 of the Constitution. Cases referred: AIR 1960 SC 268 J.Panduranga Rao v.State of A.P. AIR 1967 SC 442 State of Assam v. Horizon Union AIR 1969 Allahabad 230 Chandra Mohan v. State of U.P. 1986 LAB.I.C. 710 Sudhakar Govindarao Deshpande v. State of Maharashtra AIR 1988 SC 830 Thota Bhaskar Rao v. a.P.Public Service Commission AIR 1993 SC 2493 All India Judges Association case
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ORDER
The following order of the Court was passed by D. M. Dharmadhikari.
A common order is being passed in his petition and connected petitions i.e
W.P. No.5770/98 (Abdul Jabbar Khan v. State of M.P. and others) and
W.P.No.356/99 (Prakash Chandra Gupta v. State of M. P. and others). W. P. No.
5824/98 (Smt. Kusum Saxena v. State of M. P. and others) was allowed by the Court
to be withdrawn by order dated 27.1.1999 with liberty to the petitioner of that case to
urge all grounds on her behalf in this petition.
2. All the petitioners in this batch of petitions are practicing Advocates and have
applied, pursuant to the advertisement issued by the Public Service Commission, for
recruitment through written test and interview for the post of the Civil Judge in the
subordinate judiciary of the State of M. P. Admittedly, all the petitioners have crossed
minimum prescribed age limit of 35 years and are ineligible to apply for the post under
the notice of the advertisement. By these petitions, they have challenged the validity of
the conditions in the advertisement prescribing essential qualifications and the bar of
age.
3. Recruitment to the lower Judicial Service of the State which included the post
of Civil Judge (Junior Scale) is regulated by the M. P. Lower Judicial Services
(Recruitment and Conditions of Service) Rules, 1994 (thereinafter referred to an ‘the
rules’). The above rules have been framed by the Governor in exercise of powers
conferred by Article 234 read with provision to Article no. 309 of the Constitution of
India. Rule 7 contains the minimum prescribed conditions of eligibility for the
recruitment to the post of Civil Judge. The relevant rule 7 which was amended by
Notification dated 9th December 1977 published in M. P Gazette, Part 4 (GA) dated
19th December 1997 now stands as under:
“ 7. Eligibility: No person shall be eligible for appointment by direct recruitment to posts on category (i) of Rule 3 (1) unless: -
(a) he is a citizen of India (b) he has attained the age of 25 years and not completed the age of
35 years on the first day of January of the next following year in which applications for appointment are invited.
Provided that the upper age limit shall be relaxable upto a maximum of
five years if a candidate belongs to Scheduled Caste, Scheduled Tribe or Other backward class.
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Provided further that the upper age limit of a candidate who is a
government servant (whether permanent or temporary) shall be relaxable upto 38 years
(c) he possesses a degree in law of any recognized University. (d) he has practiced as an Advocate for not less than 3years on the
last date fixed for submission of application for appointment and
(e) he has good character and is of sound health and free from any bodily defect which render him unfit for such appointment
4. The relevant conditions contained in the advertisement issued by the Public
Service Commission on 3.12.1998 inviting applications for the post of Civil Judge
reads (rendered into English) as under:-
“ IV . Condition of the post a. ……………………………………. b. …………………………………… c. Essential qualification (1) Bachelor Degree Law from a recognized
university and (2) practice as an Advocate for not less than three years on the last date fixed for submission of application for appointment
d. Age limit. Has attained the age of 25 years but not completed the
age of 35 years on the first day of January of the next following year in which application for appointment have been invited
V. Relaxation in upper age limit. (1) Upper age limit shall be relaxable upto maximum of five years if the candidate belongs to Scheduled Caste, Scheduled Tribe or other backward classes. (2) Upper age limit is upto 38 years for candidates who are government servants. Permanent/temporary/work charged/contingency paid as also employees in State Corporations/Boards/Municipal/ Corporations/Municipalities and Autonomous Bodies. The same age relaxation will also available to employees working to various projects under the Project Executive Committees Note: If any candidate is a member belonging to Scheduled Caste/Scheduled Tribe/Other backward Classes also in Government service, for such candidate maximum age limit is 40 years. The above age relaxations would be granted only to such candidates who produce certificate for their entitlement.
5. Shri. Rajneesh Jain is one of the petitioners. Shri. Haman Hagrath counsel
apiaries with him and Shri. O. P. Mishra, Advocate addressed the court on behalf of
the petitioners. Shri Ravindra Shrivastava, and Shri. S. K. Seth, Advocates appeared
and addressed the Court for the high court and Public Service Commission
respectively. Counsel appearing for the State and for the Public Service Commission
adopted the return filed and arguments advanced on behalf of the High Court.
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6. We shall now take up for consideration in seriatim the challenges made by the
learned counsel for the petitioners to the conditions of the advertisement. The first
ground urged on behalf of the petitioner is that under the circular issued by the
General Administrative Department of the State dated 6th of July 1998 (Annexure-
A/2), for recruitment to government services the minimum prescribed age limit of
33years has been increased for candidates from general category to 35 years for
reserve category to 40 years and for women of general, reserved and specified
categories such as divorcees, widows and deserted women to 45, 50 and 55 years
respectively. It is submitted that for recruitment to judicial services no corresponding
increase in the prescribed age limit from 35 to 38 years has been provided and the
inaction in that respect is discriminatory.
7. The above contention has little merit. In the government services when the age
of superannuation of government servants was fixed at 58 years. The age limit for
recruitment was 33 years. It is after the 5th pay commission that the age of
superannuation of government servants was increased to 60 years. The government
thereafter thought it necessary to increase the age limit for entry into government
service. It is in this background that the General Administration Department (G.A.D)
of the government issued calendar dated 18th July, 1998 increasing the age limit for
recruitment to government services from 33 to 35 years. This is clear from paragraph 2
of the G. A. D Circular Annexure-A/2
8. So far as the recruitment to judicial service of the State is concerned on the
directions of the Supreme Court in the All India Judges Association Case (A. I. R.
1993 SC 2493), the age of superannuation of members of the judiciary was increased
from 58 to 60 are correspondingly, thereafter age limit of 35 was prescribed uniformly
in the rules for recruitment to judicial service. The age of retirement of government
servants after 5th pay commission has been increased from 58 to 60 years but there is
no corresponding increase of the age of superannuation of judicial officers which
continues to be 60 years as before. In these circumstances there is absolutely no
justification for increasing the age limit for entry to judicial services.
9. The challenge on the ground of discrimination has no merit. Recruitment to
judicial services is not comparable to other services of the State because in the former
the source of recruitment is from amongst the practicing Advocates in the Bar or these
advocates who subsequently joined other services. There is no other source of
recruitment. The nature of duties and functions of a judge are not comparable with the
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duties and functional of any other judge of a post or office in the services of the State
other than judiciary.
10. The next ground urged is that there is no justification to discriminate
candidates who are practicing lawyers vis-à-vis candidates to the services of the state
or state organizations for giving to the latter class age relaxation upto 38 years and
deny such relaxation in age to the former class. It is argued that as compared to such
candidates who are in services, the candidates who are active practitioners at the Bar
are more suitable for recruitment to the service and such discriminatory treatment to
members of the Bark is unconstitutional.
11. The above argument appears to be attractive, but keeping in view the object for
which such relaxation is provided, it is also found to be unacceptable. It has not to be
forgotten that the source of recruitment to judicial services is only from amongst law
graduates. Majority of law graduates join the bar to practice law in the Courts. A small
section of the law graduates join different legal or administrative departments of the
State and government organization. Such law graduates who are in service and have
minimum prescribed three years experience at the bar are also required to be given a
chance of improving their career. There are candidates who had practiced at the bar for
certain number of years and who voluntarily or due to compulsions of circumstances
were required to join services. They also deserve to be given avenue of career in
judiciary. Their chances cannot be blocked for entry into judicial services. Such in-
service candidates who had been earlier practicing law at the bar committee a distinct
class. A grant of different treatment to them by providing age relaxation has
justification. Such candidates having spend initial period of their career at the bar and
then in the government services suffer from disadvantage as compared with those who
are in active practice. As has been mentioned in the return of the High Court, the class
of government servant has traditionally been recognized as forming a distinct class in
the matter of relaxation of upper age limit in recruitment to services. In virtue of
services being rendered by them, subject to fulfillment of qualifications and other
eligibility criteria, it has been a sound policy to provide them opportunity and
encouragement to neck further and better employment if so desired to improve upon
their career. The candidates belonging to this class of government servants are not
comparable with candidate available in the Bar. Grant of age relaxation to the former
class is based on a reasonable classification which has a reasonable nexus with object
to make recruitment from all available sources. Such age relaxation cannot be
extended to the members of the bar because that would mean increase of the
prescribed age limit for members of the bar from 35 to 38 and thus fixing an age limit
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which would not give them a reasonably long tenure to seek promotion to the highest
post of the District Judge in the judicial career and would be deterrent to the successful
members of the bar in competing for judicial services.
12. Age relaxation to in-service candidates to be found in other statutory service
recruitment rules of other departments of the State. A mention of it has been made in
the return of the High Court. The departments mentioned are Forest Services, MP
State (Gazetted) Services, P. W. D (non-gazetted) services, Irrigation, Engineering and
Geological service.
13. It has also been found that large number of law graduation are working in legal
and administrative departments of the State such as in the staff of the High Court, on
the ministerial post in the Courts, Law Officers, Legal aid Officers, Halb Tahsildhars,
Police Prosecutors and various other categories of employees. It has been found that
necessary to give such in service candidates with post practice and experience in law a
chance of entry into judicial services. Entry of such candidates in the judiciary would
pave way for multination of their legal and administrative experience in discharge of
their judicial functions. If such candidates are found suitable to be provided with the
career in judicial service, the grant of age relaxation to them is necessary because they
have spent a considerable period of their life in serving in other departments and
branches of government or government organizations.
14. In the above respect, it needs mention that the present statutory rules of
recruitment under Articles 234 read with Proviso to Article 309 were framed on the
direction of the Supreme Court in All India judge Association case (supra) with a view
to bring uniformity in recruitment to judicial service in the whole of India as a first
step suggested towards constitution of an All India Judicial Service. In implementing
the directions and observations of the Supreme court in the All India judge Association
case, occasion to neck clarification arose in view of the provisions in Gujarat Judicial
Service Recruitment Rules for recruitment of law graduates working in subordinate
courts and on the establishment of the High Court or in legal section of different
department of the state. In the Gujarat rules for staff members minimum prescribed 3
years practice at the bar was not initiated upon. The validity if such rule came up for
consideration on a clarification sought from the Supreme Court. The Supreme Court in
upholding such rule of the Gujarat State providing avenue of recruitment to in service
candidates in different legal departments and legal sections of the State approved the
proposal for not insisting on practice at the bar for such members of the staff. The
relevant part of the observations in the order of the Supreme Court (a copy of which is
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filed with the return of the High Court as Annexure A-2/1) needs to be quoted in full
to meet the challenge made to the rule of relaxation for candidates in government
service as discriminatory.
“This court whole considering review petition No. 249 of 1992 in writ petition no 1022 of 1989 along with the certain other review petitions arising from the main judgment. In the case of All India Judges Association v. Union of India (199) I SCC 119 laid down certain requirements – one of the which related to the qualification required to be prescribed and the procedure to be adopted for the recruitment of judges at the grass root level in all states (vide paragraph 20 of All India judges Association v. Union of India (1993) 4 SCC 288). This court laid down that legal practice 3 years would be one of the essential qualifications of recruitment to the judicial posts at the lowest rung in the judicial hierarchy. This direction related to the appointments to be made from the bar. This direction is consistent with the observations of the law commission 77 the report found at paragraph 9.5 in the chapter 9. The relevant recommendation reads as under :
“ We have considered the pros and cons and are of the opinion
that the present system of initiating upon a number of years of practice at the bar an mandatory for recruitment to the subordinate judicial service should continue. The minimum period of practice in our opinion should be three years. Some exception regarding requirement of minimum practice may possibly have to be made in the case of law graduates employed in the courts.
In so far as the recruitment rules are concerned, the relevant rule
is rule 5 of the Gujarat Recruitment Service Rules, 1965.That rule provided the method of recruitment to class 2 of the judicial branch. According to that rule besides the members of the bar members of the staff of the high court as well as subordinate courts, members of the staff working as Assistant in the legal section of the Legal department, Sachivalaya, members of the staff of office of the Government Pleader, High Court and City Civil Court, Ahmedabad are eligible fro appointment provided they have obtained the Special degree or are qualified for enrollment as an Advocate and have served for a period of not less than 5 years case including not less than 2 years after obtaining such degree or qualifying for such enrolment and are certified to have sufficient knowledge of Gujarati and Hindi and are able to translate from Gujarati etc. Besides these requirements, those staff members are required to pass an examination called the Civil Judge (Junior division) and Judicial Magistrates, first class recruitment examination comprising two papers. Only these of the staff members who pass this rigorous test are eligible to be recruited to lowest rung of the State Judiciary. The directions given by this court in the judgment referred to hereinabove concerned the minimum practice requirement for entry into service from amongst the members of the bar. The Court in regard to the recruitment of staff members with sufficient experience. The experience of 5 years service is equated to the experience of 3 years in such cases the direction in regard to the minimum 3 years practice at the bar does not apply.
485
We, therefore, clarify this position and hold that the staff members who are eligible under Rule 6 and who comply with requirement of the Rule discussed above could be considered for appointment at the lowest rung in the subordinate judiciary. We would, however also make it clear that any dilution of this rule will render them imp facto ineligible for appointment to the service of the lowest level of state judicial service.
15. The above quoted observation of the Supreme Court fully justify preferential
treatment to the candidates who are law graduated and are employed in the services of
the state. So far as the M. P. rules are concerned, even for in-service candidates the
requirement of minimum 3 years practice at the bar has not been dispensed with. Such
candidates have to fulfill minimum prescribed three years practice at the bar to
compete with other practicing lawyers in the written test and viva-voce test. Some
favorable treatment of age relaxation is given to them because after completing 3 years
law practice they might have joined the services at their violation or due to
compulsion. Their experience in services is however found to be worth giving some
weightage for providing them avenue of recruitment to judicial service.
16. On the question of grant of relaxation to inservice candidates, the second limb
of argument advances on behalf of the petitioners had a great force that such
relaxation in age cannot be granted to work charges contingency paid or those
employed in government corporation, boards, local authorities and autonomous
bodies. The relevant rule contained in Second Proviso to clause (b) of rules has been
quoted above. The rule permits relaxation of age upto 38 years to government servants
of specified two categories only mentioned therein i.e. permanent or temporary. The
rule does not contemplate or permit grant of age relaxation to government servants of
any other category such as work charges or contingency paid. The rules does not
permit a relaxation to employees of government corporation, boards, municipal
corporations, municipal bodies and other autonomous bodies. This part of the
advertisement giving relaxation to all categories of employees could not be supported
by the counsel on behalf of the High Court. At the bar it was said that this found to be
a mistake and has been corrected in the recruitment advertisement issued for the future
year. Learned counsel for the petitioner insisted that all such ineligible candidates who
have applied on the basis of age relaxation should be eliminated from the process of
selection and for this purpose this petition be treated as public interest litigation. We
may observe that none of the petitions was filed as Public interest litigations and no
foundation for treating them so, has been laid in the petition. No directions pertaining
to the candidates in general or public have been sought in the prayer clause of the
petition. We, therefore, refrain from issuing any such direction in these petition by
486
treating them as petitions in public interest. We are not informed by the P. S. C as to
how many candidates, on the basis of the age relaxation belonging to the ineligible
category (i.e. those working in government corporations, boards, local authorities and
autonomous bodies) have actually applied pursuant to the advertisement. The
preliminary examination for the post under the advertisement is already over and the
written test has been held on 2nd of August 1999. It would be a matter of guess as to
how many candidates of the above mentioned ineligible category would not selected.
It is for the P. S. C to scrutinize the applications and at the final stage if any candidates
of such categories which are held to be ineligible get selected their names b eliminated
after due notice to them. Not much reasoning is needed to hold the offending part of
the advertisement as invalid in respect of grant of age relaxation to such categories of
employees. They are neither permanent nor temporary servants in the government. No
term/terms can be prescribed in the advertisement which are contrary to statutory
rules. With these observations, but without issuing any specific direction, we uphold
the second limb of contention advanced against grant of age relaxation to candidates
not strictly in government employment as contained in para 5 (2) of the advertisement.
17. The next ground urged on behalf of the candidates is in accordance with the
provisions of the M. P. Civil Services Special Provision for Appointment of Women
rules, 1997 there should be 30% reservations for women candidates and relaxation in
age upto 10 years in accordance with G. A. D circular of the government dated 6/10th
July 1998. Under the above mentioned rules of the year 1997 framed by the Governor
in the exercise of the powers conferred by the Proviso to Article 309 of the
Constitution of India, for recruitment to Public service and posts in connection with
the affairs of the State, 30% reservation shall be given to women candidates. In
accordance with the circular issued as provided under the said rules, women
candidates for general category would have age relaxation upto 45 years those from
reserved category upto 50 years women candidates from general category who are
divorcees, widows or deserted upto 50 years and those from above mentioned category
of reserved classes upto 55 years.
18. In our opinion, the claim for reservation of posts for women and age relaxation
on the basis of abovementioned rules of 1997 is misconceived. Recruitment to judicial
service cannot be regulated by rules made by the Governor along under Proviso to
Article 309 of the Constitution of India. The source of power to legislate and frame
rules for recruitment to judicial service is to be found in Article 234 of the
Constitution. Under Article 234 of the Constitution, the appointment to judicial service
of the State for the post other than that of District Judges shall be made by the
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Governor of the State in accordance with the rules made by him in that behalf after
consultation with the State Public Service Commission and with the High Court
exercising jurisdiction in relation to such state. The Rules of 1977 providing
reservation of posts for women and age relaxation to them are not framed by the
Governor in consultation with the High Court and P. S. C. The rules of 1997 framed
under Article 309 of the Constitution can have not application for recruitment to
judicial services which are governed only by the specific rules of 1994 framed for
judicial services under article 234 read with Proviso to article 309 of the Constitution.
19. The other argument advanced on behalf of the women candidates, in this
regard is that there is no justification to discriminate between women seeking
employment in other services of the government and the judicial services of the State.
It has been observed in the All India Judges case by the Supreme Court, the judicial
services is not ‘service’ in the strict manner because the holder of the judicial office is
not servant of the state. His conditions of service and tenure are therefore
distinguishable from holder of any other post in the government service where there is
relationship of master and servant. The source of recruitment for judicial services is
limited to the law graduate either at the bar or in any department of the government.
Since the source of recruitment is limited, the availability of women candidates is also
limited to such law graduates amongst women who are at the bar or in services. In
other departments of the state, there are posts and wings well suited for recruitment of
women. Opportunity of employment to women who suffer pecuniary and social
disabilities such as the divorcees, deserted woman and widows may be provided in
other departments but it not found suitable in judiciary. In the matter of reservation of
seats for women and for grant of age relaxation to them differential treatment is
justified from the nature of judicial service and the source of recruitment. The attack to
the rule on the ground of discrimination under the article 14 and 16 therefore, cannot
be sustained. The decision of the Supreme Court in the case of J. Panduranga Rao V.
State of A. P. (AIR 1963 SC 268) on which reliance has been placed on behalf of the
petitioners in support of the above argument is distinguishable. In that case, for
recruitment to the post of District Muncif discrimination in the rules was found in
prescribing the qualification of practice as an Advocate only in the High Court of A. P.
The Supreme Court held that the Advocates of other High Courts cannot be
discriminated for recruitment to judicial service of A. P. Such is not the case here. On
the question of reservation of seats and age relaxation for women for recruitment to
judicial services, we do not propose to express any final opinion although on the
circumstances brought on record, at present, we find not ground to issue any such
direction for reservation of seats and age relaxation to women candidates as is prayed
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on one of the petitions filed on the behalf of a women candidate who has crossed the
prescribed age limit.
20. In the course of hearing the learned counsel appearing for the High Court
placed before us a copy of the formal decision taken and conveyed by the High Court
on the subject to the Government refused to accept the proposal of the government to
introduce provision of reservation of seats and age relaxation for women in
recruitment to judicial services at bar with provision made for women for recruitment
to posts in services in other departments of the state stating that there are enough
number of women in judicial services.
21. As we have held above the source of recruitment to judicial services is limited
to law graduates with three years practice at the bar. We have presently found no
ground to discriminate between them on the ground of sex alone. We, however, for see
a situation where women judicial officers might be required to be appointed to courts
specially constituted for dealing with laws concerning women, children and families.
22. The grant of reservation of seats and reservation to women candidates for
recruitment to judicial services is essentially a policy matter to be decided by the
appointing authority depending upon various relevant factors such as the nature and
sources of recruitment, availability of suitable of number of posts, the need for
representation of special class and the requirements of the service.
23. We, therefore, do not rule out a valid policy of reservation in future in favour
of women for recruitment to judicial services. The reasonability and constitutionality
of the same would then be a question for decision if brought to the court by any of the
parties.
24. The last argument that needs consideration and some observation although
advanced by the learned counsel appearing an individual grievances of the petitioners,
is on the condition with regard to minimum prescribed period of practice at the bar.
On behalf of the petitioners it is emphasized that the condition in the advertisement
and the relevant rule prescribed three years minimum practice as an Advocate on the
last date of submitting the application under the advertisement. It is contended that the
condition requires that the candidate should be in ‘continuous practice’ on the date of
submission of the application and such candidates who has practiced in the past for
three years but not continuously before the last date of the application are not eligible.
Very strong reliance has been placed on the Single Bench decision of Bombay High
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Court in Sudhakar Govindrao Deshpande v. State of Maharashtra (1986 LAB. I. C
710). In the Bombay case (supra) by dissenting from the view of the Allahabad High
Court in the case of Chandra Mohan v. State of U. P. (AIR 1969 Allahabad 230=1969
LAB. I. C 521) and construing the provisions of Article 233 (2) of the Constitution
laying down the qualifications for members of the bar for appointment as District
Judges, it was told that the Article refers to “members of the bar” who have been of
seven years standing and not to persons who have ceased to be the members of the bar
and are employed elsewhere at the time of their application for appointment as District
Judges. The learned Single Judge of the Bombay High Court noted the fact that the
phrase ‘has been’ in capable of two interpretations namely (i) has been some time in
the past (ii) has been in the immediate past denoting a continuous state from the past.
It observed thus:
“Looking to the history of the provisions contained in the Article 233(2) and the context, the correct interpretation of the Article 232(2) is that it refers to persons who have been advocates or pleaders and who continue to be so at the time of their appointment.”
25. The learned judge of the Allahabad High Court in the case of Chandra Mohan
(supra) while construing the provisions of section 233(2) of the Constitution relied on
a decision of the Supreme Court in the case of State of Assam v. Horizon Union (AIR
1967 SC 442) and held that the words “has been” in the phrase, when not followed by
a principle is the present perfect tense of “to be” and accordingly the language
indication that the state of being has existed an may be (but not necessarily in)
continuing. It was, therefore, held by the Allahabad High Court that article 233(2) of
the Constitution does not disqualify a candidate who had practiced for 7 years at the
bar in the past and may not be in the bar on the date of his consideration for
appointment as District Judge.
From the aforesaid decisions of Bombay and Allahabad High Courts and the
decisions of the Supreme Court which we shall hereafter discuss, the relevant
recruitment rule providing minimum prescribed period of practice at the bar needs
construction. The rule uses the expression “he has practiced as an advocate for not less
than 3 years on the last date fixed for submission of application for appointment”. The
expression “has practiced as advocate” is susceptible of two interpretation conveying
(i) the candidate who has been in continuous practice for not less than 3 years on the
date fixed for submission of application and (ii) the candidate who had practiced in the
past for 3 years at the bar. In interpreting the above rule, the object with which the
above rule and the legal history for introducing such a rule cannot be overlooked. The
Law Commission in its 77th Report recommended that there should be insistence upon
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the number of years of practice at the par an a mandatory requirement for recruitment
to subordinate judiciary service. The part of that report has already been quoted above
as part of the order passed by the Supreme Court clarifying the observations and
directions in the All India Judges Association’s case the following observations were
made for providing in the recruitment rules minimum three years’ period of practice as
a necessary eligibility condition:-
“The qualifications prescribed and the procedure adopted for recruitment of the judges at the lowest rung are not uniform in all the States. In view of the uniformity in hierarchy and designations as well as the service condition, it is necessary that all the States should prescribe uniform qualifications and adopt uniform procedure in recruiting the judicial officers at the lowest rung in the hierarchy. In most of the States, the minimum qualifications for being eligible to the post of the Civil Judge-cum- Magistrate First Class/ Magistrate First Class / Munsiff Magistrate is minimum three years practice as a lawyer in addition to the degree in law. In some States, however, the requirement of practice in altogether dispensed with and Judicial Officers are recruited with only degree in law to their credit. The recruitment of law graduates as Judicial Officers without any training or background of lawyering has not proved to be a successful experiment. Considering the fact that from the first day of his assuming office, the judge has to decide, among others, questions of life, liberty, property and reputation of the litigants, to induct law graduates fresh from the Universities to occupy seats of such vital powers in neither prudent nor desirable. Neither knowledge derived from books nor pre-service training can be an adequate substitute for the first hand experience of the working of the court system and the administration of justice begotten through legal practice. The practice involves much more than more advocacy. A lawyer has to interact with several components of the administration of justice. Unless the judicial officer is familiar with the working of the said components, his education and equipment as a Judge is likely to remain complete. The experience as a layer is, therefore, essential to enable the judge to discharge his duties and functions efficiently and with confidence and circumspection. Many States have hence prescribed a minimum of three years’ practice as a lawyer as an essential qualification for appointment as a Judicial Officer at the lowest rung. It is here necessary that all the States prescribe the same minimum practice as a lawyer as a necessary the judiciary in this connection. It may be pointed out that order Art. 233(2) ot the Constitution, no person is eligible to be appointed a District Judge unless he has been an advocate or a pleader for no less than seven years while Arts 217(2) (b) and 124 (3) (b) require at least ten years practice as an advocate of a High Court for the appointments of a person to the posts of the Judge of the High Court and the Judge of the Supreme Court, respectively. Therefore, the Supreme Court directed that all States shall take immediate steps to prescribe three years practice as a lawyer as one of the essential qualification for recruitment as the judicial officer at the lowest rung. The direction is calculated to ensure recruitment of competent, Independent and honest judicial officers and thus to strengthen the administration of justice and the confidence of public in it. The states should, therefore, take immediate steps to comply with the said direction by amending the relevant Rules”.
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27. We have already quoted above along with the observation of the
Supreme Court clarification to the said observations made while considering the
Gujarat Judicial Service Recruitment Rules which provided avenue of recruitment to
members of the staff working in the Courts and legal department of the State. The
Supreme Court in the directions and orders issued in the matter of clarification, upheld
the Gujarat Recruitment Rule dispensing with 3 years ’ practice at the bar and instead
requiring only minimum 5 years service in the concerned legal department for in
service law graduates.
28. Interpreting, therefore, the rule in the M.P. Recruitment Rules, the above
quoted observations in the All India Judges case as initially made by the Supreme
Court and subsequently clarified will have to be given due weightage and office under
the Recruitment Rules, the avenue of recruitment in provide both to the lawyers
practicing at the bar for three years and those who have practiced for the minimum
required period but on the date of making the application are employed in the
government service. If the interpretation sought to be placed on the rule by the
petitioners in accepted, then all these government servants who are law graduates but
are not actually in practice on the date of making application by them actually in
practice on the date of making by them would be debarred from applying for the post.
It is well settled that an interpretation whereby part of the rule is rendered ineffective
should be avoided and the interpretation which would make all parts of the rule
workable should instead be preferred. We have shown from the extracts of the
Judgment of the Supreme Court in the All India Judges Case (supra) which was
subsequently clarified by it (supra), the in service candidates who had practiced for
minimum three years at bar have to be considered for appointment being from one of
the suitable sources for recruitment to judicial services. In the background of the
directions of the Supreme Court and in the context in which the rule was introduced, it
has to be held that the expression “has practiced” would mean all candidates who
might have practiced for minimum period in the part and also these who are in
continuous actual practice till the last date fixed for making the application. The
decisions cited at the bar are distinguishable on the language of the particular rule in
those cases. In the case of Thota Bhaskar Rao v. A.P. Public Service Commission
(AIR 1988 SC 830) the language of the relevant rule was that in case of candidate who
in already in government service he must have actually practiced for a period of more
than 3 years immediately prior to the date of his entering the Government service. The
rule under consideration before us i.e. Rule 7 (d) does not have similar language. In
the case of Thota Bhaskar Rao (supra) the question that arose was whether the service
in Hindustan Shipyard which is a government company would be deemed to be
492
government service for the purpose of the rule and the answer of the Supreme Court
was in the negative. The decision of the learned Judge of Bombay High Court was on
interpretation on Art. 233, which provides experience at the bar for seven years as a
qualification for appointment to District Judge and the language of the Article was
interpreted . The Bombay view dissents from the earlier view of the Allahabad High
Court in which it has been held that candidates who have practiced for seven years in
the post but may not be in actual practice on the date of making the application, are
eligible to apply for the post of District Judge. The decision of the Allahabad High
Court in based on the decision of the Supreme Court in State of Assam v. Horizon
Union (AIR 1967 SC 442). For the reasons we have already mentioned above,
particularly in view of the interpretation of the rule laying down prescribed post
experience at the bar as has been clarified by the Supreme Court in All India Judges
Association Case, we are of the view that the decisions of Bombay and Allahabad
High Courts concerning interpretation of Art. 233(2) are not helpful in construing the
rule framed for recruitment to the lower judicial service of the State under Art. 234 of
the Constitution. In the decision of the Supreme Court in State of Assam v. Horizon
Union (supra) , under Sec 7-A (3) (aa) of the Industrial Disputes Act , a candidate who
has for a period of not less than three years been a District Judge was held qualified,
for appointment as Presiding Officer of the Industrial Tribunal . Shri B.C.Datta who
was appointed as Presiding Officer of the Industrial Tribunal had held the office of the
Additional District Judge for the requisite period of three years in the past but on the
date he was appointed toe the Tribunal he was holding the office of the Registrar of
the High Court of Assam. His appointment as proceeding Officer of the Industrial
Court was challenged on the ground that the requirement of the section is that a
candidate who was continuing as the District Judge or Additional District Judge alone
was qualified for the appointment. In interpreting the provision contained in Section
7-A (3)(aa), the Supreme Court held that the High Court was in error in thinking that
in order to satisfy the conditions of Section 7-A (3)(aa). Shri Datta would have
actually worked on District Judge/Additional District Judge for a period not less than
three years. For over three years, Shri Datta held the post of Additional District
Judge. Consequently, during this period he had been an Additional District Judge as
required by Section 7-A (3)(aa), of the I. D. Act. It was not necessary that he must
have actually worked as Additional District Judge for this period.
29. Taking some support from the above decision of the Supreme Court and
relying on the observations of the Supreme Court in All India Judges Association
Case with the clarification issued by it subsequently in the matter of in-service law
graduates, we are of the opinion that the rule harmoniously construed along with other
493
rules makes it clear that law graduates in service who had practiced for minimum 3
years at the bar are qualified to apply for the post.
30. Having thus answered all the contentions advanced on behalf of the petitioners,
we find no ground to grant any relief to any of the petitioners in this batch of petitions.
There is also no Justification to issue any direction or writ in these batch of petitions
treating them the Public Interest/Litigation.
31. Consequently, the petitions are dismissed, but in the circumstances, without
any order as to costs.
***
494
MAHARASTRA PUBLIC SERVICE COMMISSION
495
BOMBAY HIGH COURT W.P.No.1734 of 1987
D.D. 4.12.87
Hon'ble Mr. Justice R.A.Jahagirdar Hon'ble Mr. Justice T.D.Sugla
Babanrao H.Avhad – Petitioner Vs. Chairman, Maharashtra P.S.C. & Ors. – Respondents Held – Percentage of marks for Viva-voce/Interview should not exceed 12.2% of the total marks – Direction has been issued to Maharashtra P.S.C. to assign not more than 12.2% of the total marks in any examination for Viva-voce/Oral Test/Personality Test.
Cases referred: 1. AIR 1981 SC 487 Ajay Hasia v. Khalid Mujib 2. AIR 1987 SC 454 Ashok Kumar Yadav v. State of Haryana
ORAL JUDGMENT ( Per Jahagirdar J) This petition seeks to challenge the method adopted by the Maharashtra Public
Service Commission, hereinafter referred to as "the MPSC", in allotting an high a
percentage as 20 for the viva voce test in the examinations conducted by it. The
challenge is based upon a judgment of the Supreme Court in Ashok Kumar Yadav v.
State of Haryana, A.I.R. 1987 Supreme Court, 454. Before we proceed to notice the
guidance given by the Supreme Court in Ashok Kumar's case it should be briefly
noted that the petitioner though an Advocate by profession claims to be a social
worker. He says that he is giving free coaching to the candidates appearing for the
examinations which are conducted for filling different posts under the Government of
Maharashtra. These examinations are conducted by the MPSC. The Chairman and
Secretary of the MPSC have been added as respondents Nos.1 and 2 respectively in
this petition. The State of Maharashtra is the third respondent.
2. Though the petitioner himself has no direct nexus with the cause of action
which is now espoused in this petition, the petition has been admitted as, probably, an
exercise in the interest of public and therefore, we are, without going into the details of
the locus standi of the petitioner, disposing of this petition on merits. It is also
necessary to add that one Mr. M.K. Patil has been added as an intervener in this
petition on an application made by him purportedly on behalf of 50 persons who had
appeared in the examinations conducted by the MPSC in the years 1985 and 1986 but
who failed – according to them because voce test. The application was made for being
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joined as an intervener. We are not sure whether the application is maintainable
under the rules of the Appellate Side of this Court. At best those candidates could
have been joined as respondents in this petition. Mr. M.K. Patil has appeared before us
in person. He cannot be taken to be the representative of all the candidates who
appeared for the examinations conducted in the years 1985 and 1986 because no order
under Order I Rule 10 of the code of Civil Procedure has been passed in the civil
application which he presented. However, the Division Bench which was earlier
seized of this matter noticed that the list of the 50 candidates who failed in the
examinations conducted in the years 1985 and 1986 signed by those candidates was
furnished before them by the fourth respondent. This is only to point out that the
fourth respondent cannot claim any relief in this petition in favour of himself apart
from resisting, if anything, the claim on behalf of the petitioner. However, keeping
aside this technical aspect, we have heard the grievance of the fourth respondent, as
will be noticed in the course of this judgment.
3. In Ashok Kumar's case (Supra), the system of the Haryana Public Service
Commission which allotted 22% of the total marks of an examination for the viva
voce test was challenged. After examining the rule of equality which is enshrined in
Article 14 of the constitution and after noticing that any arbitrary action results in the
infraction of that rule, which was laid down, among others things, in Ajay Hasia V.
Khalid Mujib, A.I.R., 1981 Supreme Court 487, the Supreme Court held that the
allocation of 22.2% of the total marks for the viva voce test in the case of the general
candidates was excessive and amounted to an arbitrariness which would suffer the
vice of the contravention of Article 14 of the Constitution. Though the Supreme Court
noted that normally it would not itself venture into the examination of the propriety of
allotting a particular percentage of marks for the viva voce test, it noticed that an
expert body called the Kothari Committee had gone into this question and had made
certain recommendations which ultimately resulted in the Union Public Service
Commission itself allotting 12.2% of the total marks for the viva voce test. This was
found as a sufficiently safe percentage to be adopted by all Public Service
Commissions while holding examinations. In paragraph 29 of the judgment the
Supreme Court has stated as follows:-
" The percentage of marks allocated for the viva voce test by the Union Public Service Commission in case of selections to the Indian Administrative Services and other allied services is 12.2 and that has been found to be fair and just, as striking a proper balance between the written examination and the viva voce test".
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Recommending that the same percentage of marks should be assigned to viva
voce test by the Haryana Public Service Commission, the Supreme Court proceeded to
state as follows:-
"We would suggest that this percentage should also be adopted by the Public Service Commissions in other States, because it is desirable that there should be uniformity in the selection process throughout the country and the practice followed by the Union Public Service Commission should be taken as a guide for the State Public Service Commissions to adopt and follow".
4. The MPSC allots as a rule 20% of the total marks for the viva voce test for
the State Service Examinations (non-technical). In the case of examinations for
Police Sub-Inspectors and Range Forest Officers, the percentage of marks allotted for
the viva voce test is 16.6.
5. Mr. Prafulla B. Shah, the learned Advocate appearing in support of the
petition, naturally relied upon the judgment of the Supreme Court in Ashok Kumar's
case and has canvassed the view that the high percentage of marks assigned by the
MPSC for the viva voce test is demonstrably arbitrary and suffers from the same vice
from which the percentage that was fixed by the Haryana Public Service Commission
was found to suffer by the Supreme Court. In the light of the discussion which the
Supreme Court has made on this question in the judgment in Ashok Kumar's case, we
have to accept the criticism of Mr. Shah in this regard. It has also been suggested by
Mr. Shah, and with justification, that in the examination held at State level, probably
greater number of rural people appear for the examinations and this is one of the
additional reasons as to why the high percentage of marks allotted to the viva voce test
should be held to be arbitrary. Following the judgment of the Supreme Court in
Ashok Kumar's case, therefore, we will have to hold that the percentage of marks
assigned by the MPSC at 20 for the viva voce test in the non-technical State Service
examinations is high amounting to an arbitrariness.
6. An affidavit has been filed in reply to this petition by the Under Secretary
to Government, Maharashtra Public Service Commission. We must record our
appreciation of the very reasonable stand taken by the MPSC in this affidavit in reply.
The MPSC is aware of the judgment of the Supreme Court in Ashok Kumar's case.
The reasons as to why the MPSC has assigned 20% of the total marks to the viva vice
test have been mentioned in this affidavit. In the first place it has been stated that the
upper age limit for the Union Public Service Commission examination, which was
noticed by the Supreme Court in Ashok Kumar's case, is 26 years while the upper age
limit for admission to the State Service examination held by the MPSC is 28 years.
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This fact has been mentioned with a view to show that in the case of candidates who
are older in age a higher percentage of marks for the viva voce test is permissible even
noticing the test laid down by the Supreme Court. Mr. Gokhale appearing for the
respondents has pointed out that in paragraph 29 of the judgment of the Supreme
Court in Ashok Kumar's case the Supreme Court noticed that a higher percentage of
marks had been assigned for the viva voce test in the case of ex-service officers.
Elsewhere in the said judgment it has been noticed that a higher percentage of marks
for the viva voce test for people of advanced age and who have some experience is
permissible.
7. However, in the instant case, we are reluctant to accept that the difference
between the age of 26 years, which is the limit for admission to the Union Public
Service Commission's examinations, and the age of 28 years, which is the age limit for
admission to the examinations conducted by the MPSC, is not sufficiently wide as to
warrant a higher percentage of marks being assigned to the viva voce test. It has also
been stated in the affidavit that for the examinations conducted by the MPSC, people
who are already employed are greater in number than the people who are fresh
graduates. If this is so a higher percentage of marks for the viva voce test is justified –
according to Mr. Gokhale. Here also we are not satisfied that the ground urged in
support of the practice adopted by the MPSC is sufficiently strong. In the affidavit
itself the proportion of working candidates to the total number of fresh candidates
appearing for the examinations has not been mentioned. Mr. Gokhale, on taking
instructions from an officer in the Court, suggested that the percentage of working
people who appear for the examinations is as high as 60. Assuming that this is so, we
find that this is a further reason as to why the assignment of 20% of marks for the viva
voce test is unjustified. If persons who are not working constitute 40% of the total
number of candidates who appear for the examinations conducted by the MPSC,
assignment of 20% of the total marks for the viva voce test would be discriminatory as
against them whereas the reduction of the said percentage from 20% to 12.2% as
recommended by the Supreme Court, would not act to the detriment of either of the
groups.
8. In paragraph 6 of the affidavit in reply it has also been urged on behalf of
the MPSC that the posts covered by the UPSC examinations and the MPSC
examinations are different in kind. The former are in urban while the latter are in the
rural areas in the State. It is therefore, stated that knowledge of rural conditions and
problems will be a predominant factor among the qualities to be assessed at the viva
voce test. According to the MPSC, if candidates are selected giving weightage merely
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to their performance at the written test, they may turn out to be total misfits for the
posts in the rural areas.
9. We are not satisfied that this is a satisfactory answer to the charge of
arbitrariness in fixing a high percentage of marks for the viva voce test. This is too
wide an assertion to be accepted as a sufficiently strong argument in support of fixing
a high percentage of marks to the viva voce test.
10. Mr. Gokhale also argued that if excessive weightage is given to the
performance in the written test, the adverse effects of the variable factors in the
optional papers remain uncorrected. On the basis of the past experience, according to
the MPSC, these adverse effects are neutralised by the marks of the viva voce test. It
is impossible to accept even this assertion made on behalf of the MPSC, because there
is nothing to indicate as to the total effect of what the MPSC calls the "variable
factors" in the optional papers. It is true that the viva voce test is in fact meant to
neutralise the adverse effects of what the MPSC calls the "variable factors" in the
optional papers. The question is not whether there should be viva voce test; the
question is whether as high as 20% of the total marks should be assigned to the said
test. This has not been demonstrated to be necessary by the affidavit in reply.
11. It has been mentioned in the affidavit in reply that the MPSC has taken up
the question of bringing uniformity in the patters of question papers of the written test
so that the effect of variable factors will be reduced. This, in our opinion, is the
correct approach to the question. It has also been mentioned that the while question is
under the examination of the MPSC.
12. Considering what has been stated in the affidavit in reply and after hearing
Mr. Gokhale for the respondents, we are satisfied that in the light of what has been
stated by the Supreme Court in Ashok Kumar's case the high percentage of marks
namely 20% of the total marks, assigned by the MPSC in the examinations conducted
by it for the non-technical service and 16.6% for the examinations for Police Sub-
Inspectors and Range Forest Officers are arbitrary and are not supportable in the light
of the law laid down by the Supreme Court. Since the Supreme Court it self has
recommended, after noticing that the Union Public Service Commission has fixed
12.2% of the total marks for the viva voce test for the all India examinations
conducted by it, that the same percentage should be adopted by the different State
Public Service Commissions in India, we have no hesitation in directing that the
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MPSC shall not fix a percentage of marks higher than 12.2% for the viva voce test in
the examinations conducted by it.
13. Mr. Shah has insisted that the results of the examinations conducted in the
years 1985 and 1986 should be re-opened and the MPSC should be directed to declare
the results afresh on the basis that the viva voce test carried 12.2% of the total marks.
This is also the demand of the forth respondent whom we have heard. The affidavit in
reply has suggested that if this Court a lower percentage of marks should be assigned
to the viva voce test that decision should be made prospective. After hearing all the
parties in this connection and being also aware of the order passed by previous
Division Bench in Civil Application NO. 3257 of 1987 that further examinations and
results and appointments shall be subject to the result of the writ petition, we are of the
opinion that the direction which we propose to give below shall be implemented
prospectively and not retrospectively. This is for the simple reason that we are
disposing of this petition in December 1987. It is not desirable that the results of the
examinations conducted in the years 1985 and 1986 should be disturbed at this stage.
Several people must have appeared for the said examinations on the understanding
that 20% of the total marks had been assigned to the viva voce test. The results have
been declared and, probably, many people must have been appointed to the posts and
some may be awaiting their appointments on the basis of the said examinations. The
persons who were aggrieved by the results of those examinations of 1985 and 1986
have not been made parties, either individually or in their representative capacity. It
would, therefore, be manifestly unjust to re-open the results of the examinations
conducted in the years 1985 and 1986.
14. In the result, the petition partly succeeds. We direct that the Maharashtra
Public Service Commission shall not assign more than 12.2% of the total number of
marks in any examinations for the viva voce test otherwise called the oral test or
personality test,. This direction shall be implemented hereafter.
15. There will be no order as to costs in this petition.
***
501
Writ Petition No.3664 of 1990 D.D. 23.10.1990
Hon'ble Mr. Justice M.L.Pendse Hon'ble Mr. Justice V.P.Tipnis
Shri. S.V.Shinde - Petitioner Vs. State of Maharashtra & Ors. – Respondents
Held – P.S.C. which is created under the Constitution, cannot be called upon to produce the answer scripts for inspection.
JUDGMENT
Allowed to be withdrawn on application of counsel for Petitioner.
The Respondent No. 2 is justified in contending that Public Service Commission which is created under the Constitution, cannot be called upon to produce the answer-papers for inspection.
Mr. W.N. Yande, Additional Govt. Pleader, with Mr. V.M. Parshurami, Asstt.
Govt. Pleader appeared on behalf of State of Maharashtra in the above matter.
***
502
Writ Petition No.4133 of 1991 & connected cases D.D. 27.2.1992
Hon'ble Mr. Justice V.P.Tipnis Hon'ble Mr. Justice M.S.Vaidya
Shaligram & Ors. – Petitioners Vs. The State of Maharshtra & Ors.
Whether selection based solely on Personality Test or Viva-voce is valid? Yes
Following procedures of the Commission in the recruitment to the post of Civil Judge (Junior Division) are upheld by the Court:
(1) Chairman of the Commission can constitute or re-constitute the Interview Committee and
(2) Short listing of candidates eligible for interview by conducting
Screening Test. Cases referred: 1. AIR 1963 Mysore 202 K.N.Chandrasekhara v. State of Mysore 2. 1980 Lab. IC 759 T.N.Manjula Devi v. State of Karnataka 3. 1981 4 SCC P.159 Lila Dhar v. State of Rajasthan & Ors. 4. 1985(4) SCC P.417 Ashok Kumar Yadav vs. State of Haryana & Ors. 5. (1987 Supp) SCC 401 State of U.P. vs. Rafiquddin 6. (1991) 1 SCC 662 Mohinder Sain Garg V. State of Punjab
ORAL ORDER (PER TIPNIS. J)
As these four writ petitions raise common points of law and fact, they are
disposed of by common order.
2. Writ petition No. 4133/1991 is filed by Sri Shaligram Sakharam Manwar.
The petitioner is a legal practitioner and has been practicing in the District and
Sessions Court and the subordinate courts at Aurangabad since 1981. The Deputy
Secretary of the Maharashtra Public Service Commission (MPSC) invited applications
for the post of Civil Judge (Junior Division) and Judicial Magistrate (First Class) from
eligible candidates vide a notification. dated 22nd of May 1990 for filling 54 vacancies
in the Judicial Service of the State of Maharashtra which are exclusively reserved for
the candidates belonging to backward classes, 2 posts for Scheduled Castes and
Scheduled Caste converts to Buddhism, 47 posts for Scheduled Tribes, including those
living outside the specified areas and 5 posts for De-notified Tribes and Nomadic
Tribes. To be eligible for appointment, the candidates should ordinarily be not less
than 21 years and not more than 40 years of age on 1st September 1990, the candidates
must have practiced as an Advocate, Attorney or pleader in the High Court at Bombay
503
or in courts on 3rd July 1990 and the candidates should have sufficient knowledge of
Marathi to enable him to speak, read, write and translate with facility into English and
vice versa. In response to the advertisement the petitioner submitted his application.
3. There after, the MPSC again invited applications for 200 vacancies of Civil
Judge (JD) and Judicial Magistrate (FC) in the Judicial Service of the state of
Maharashtra. It was also notified that 68 vacancies are reserved for the candidates
belonging to backward classes; 26 for scheduled castes and scheduled caste converts
to Buddhism, 14 for Scheduled Tribes, including those living outside the specified
areas, 8 for De-notified Tribes and Nomadic-Tribes and 20 for other backward
communities. To be eligible for appointment, the candidate must ordinarily be not less
than 21 years and not more than 35 years of age, there being relaxation upto 40 years
in cases of candidates belonging to communities recognised as backward by the
Government of Maharashtra for the purposes of recruitment as on 1st January 1991.
The other requirements wee identical with the earlier notification. It was further
specifically notified in the said advertisement that a Screening Test consisting of two
papers of descriptive type on the topics mentioned will be held by the commission on
3rd March 1991 for short-listing of candidates to be called for interview. All the
candidates whose applications were filled in properly were to be admitted to the test
without scrutiny of their eligibility for appointment to the post. The marks obtained
by the candidates in that test shall not be taken into consideration for the purpose of
final selection nor the same will be communicated to the candidates. Selection was to
be made on the basis of performance at interview only. In this advertisement it was
also notified that the candidates belonging to Scheduled – Castes, Scheduled Tribes,
De- notified Tribes and Nomadic Tribes who have applied for the posts advertised by
the Commission under special drive (i.e. the earlier notification) need not apply again
and their applications would be considered for these posts else and they will be
required to appear for common "screening test". This notification was issued on 26th
September 1990. The petitioner successfully passed the screening written examination
and was called for viva voce test on 25th September 1991. The petitioner has
contended that he appeared before the Commission on 25th September 1991 for viva
voce test and though it was conducted hardly for two to three minutes, he replied all
the questions satisfactorily. The petitioner, however, was shocked when he received
when he received letter dtd 06.11.1991 from MPSC stating that he is not
recommended for the post. The petitioner challenges the validity of Rule 4 of the
Bombay Judicial Service- Recruitment Rules, 1956. The petitioner also challenges the
method and manner of preparing the select list by the MPSC on several grounds. The
petitioner has also challenged the select list on the ground that so far as the reserved
504
posts for backward class candidates are concerned, the MPSC has not followed the
directions – instructions in that behalf given by the Government under certain
circulars. The petitioner has, therefore, prayed that the method and manner of
selection procedure followed by MPSC should be declared as arbitrary and the select
list prepared by the MPSC should be quashed and not aside and the MPSC may be
directed to consider the claim of the petitioner to the post applied for by issuing
appropriate directions.
4. Writ petition No. 74/1992 is filed by one Pawan kumar Manohar Bedre.
He has stated that he has applied in response to the advertisement published by the
MPSC on 26th June 1990 inviting applications for vacancies of Civil Judge (J.D) and
Judicial Magistrate (FC). He was called for a written examination held on 3rd of
March 1991. Having succeeded in the said examination he was called for interview on
26th September 1991. The petitioner appeared for the interview and, according to him,
replied all the questions asked by the member of the panel in a satisfactory manner.
However, the petitioner was dismayed when he received letter dtd 06.11.1991 from
MPSC informing that the MPSC has not recommended him for the post. The
petitioner has challenged the procedure of MPSC on the ground that the panel
constituted for interviewing the candidates consisted of different members for
different member for different candidates. Some time the panel consisted of
Chairperson of MPSC Smt. Patil and Shri. B.B. Shande as the member of the MPSC
and at some time Shri B.B. Shinde was replaced by Shri. S.A., another member of
MPSC. At times the panel consisted of only the Chairperson Smt. Patil though
Hon'ble Mr. Justice Puranik, as the representative of the High Court of Bombay was
present all throughout. The petitioner has contended that inasmuch as Hon'ble Mr.
Justice Puranik did not have right to vote under the rules, the decision of selecting the
candidates, after 09.11.1991, was taken only by the Chairperson, namely, Smt. Patil,
which is invalid. This procedure, according to the petitioner, is arbitrary. The
petitioner has also challenged the validity of Rule 4 (4) of the Bombay Judicial
Service Recruitment Rules, 1956, on the main ground that under the rules the Hon'ble
High Court Judge is not entitled to vote. The petitioner has also challenged the
manner of preparing the select list inasmuch as no weightage has been given to the
written test at all and the selection is based solely on the personality test or the viva
voce. The petitioner has also challenged the process of selection on the ground that he
was interviewed only for five minutes. The petitioner has, therefore, prayed for
quashing the select list prepared by the MPSC and also for direction to the respondents
to adopt proper procedure for selection to the posts of Civil Judge (JD) and Judicial
Magistrate (FO).
505
5. Write petition No. 206/1992 is filed by Shri. Shivanand Bhagwanrao
Kulkarni. The petitioner is practising Advocate since 06.03.1985 in the courts at
Nanded, Labour and Industrial Courts, High Court and Tribunals at Aurangabad. The
petitioner applied in response to advertisement published by MPSC on 26.06.1990.
He passed the written test held on 03.03.1991 and who called for interview on 20th
September 1991. The petitioner appeared for the interview and according to the
petitioner, he answered all the questions in a satisfactory manner. However, he was
dismayed when he received letter 04.11.1991 from MPSC informing him that he was
not recommended for the post. He has also challenged the manner and method of
selection on the ground of change in the composition of the interview panel from time
to time. The other submissions and challenges are identical relief's are claimed in the
petition
6. Writ petition No. 207/1992 is filed by one Laxman Nagorao Deckare and
Kum. Ranjana Dattatraya Reddi who are practising advocates in the District Court at
Nanded and the courts subordinate to it. Petitioner No.1 has been practising since
1980 while petitioner No. 2 since about 1986. The petitioners applied for the posts in
response to advertisement dtd 26.06.1990 and were called for written test. The
petitioners No.1 and 2 were further called for personal interview held on 20.09.1991
and 03.10.1991 respectively. According to the petitioners, they answered the
questions asked by Hon'ble member of the panel in a satisfactory manner but they
were dismayed when they received communications dtd 04.11.1991 and 06.11.1991
respectively by petitioners Nos. 1 and 2 informing them that they have not been
recommended for the post. They have contended that when the interview of petitioner
No.1 was held on 20.09.1991 the panel consisted of the Chairperson of MPSC Smt.
Patil, another member of MPSC Shri B.B. Shinde and Hon'ble Mr. Justice Puranik of
the Bombay High Court while when petitioner No.2 was interviewed on 03.10.1991
the panel consisted of the Chairperson of the MPSC Smt. Patil and Hon'ble Mr. Justice
Puranik of the Bombay High Court. The petitioners have complained that there were
254 vacant posts and though about 484 candidates were called, it is learnt that
recommendations are not made for all the 254 posts despite availability of eligible
candidates like petitioners and others who have succeeded in the written test. The
petitioners have also contended that initially applications were invited for 54 posts
exclusively reserved for the candidates belonging to backward classes, however, they
were merged by conducting written test for 254 posts which has resulted into injustice
to the candidates belonging to reserved classes. The petition contains similar and
506
identical challenges as those in writ petition No. 74/1992 and identical relief's are
claimed in this petition as well.
7. In all the petitions the State of Maharashtra and MPSC are made
respondents. Notice before admission was issued in all the petitions to the
respondents. Affidavit-in-reply has been filed on behalf of the MPSC in writ petition
No. 206/1992 and it is prayed that the same affidavit may be treated as affidavit-in-
reply in all the petitions. Separate additional affidavit-in-reply are also are also filed
in respect of writ petitions No. 4133/1991 and 207/1992. In affidavit-in-reply to writ
petition No. 207/1992. it is stated that the commission has interviewed about 464
candidates and recommendations of 254 candidates are made. It is further stated that
the written test was conducted as screening test and the said procedure has been
approved by the Supreme Court by its judgment dtd 29th April 1987 rendered in Civil
Appeal No. 1971/1986 (States of Maharashtra V Arunkumar Ganeshrao and others).
It is further stated that two different advertisement were issued; first was published on
22nd May 1990 for 94 posts exclusively reserved for the candidates belonging to
Scheduled Castes, Scheduled Tribes, De-notified Tribes and Nomadic Tribes. Another
advertisement was published on 26th September 1990 inviting applications for 200
vacancies for the posts of Civil Judges and reservation of 26 vacancies for Scheduled
Castes, 14 for Scheduled Tribes, for De-notified Tribes and Nomadic Tribes and 20
for other backward communities was provided. It is further mentioned in the affidavit
that as such 61 vacancies were available for the candidates of Scheduled Tribes when
only 10 applications were received from candidates belonging to Scheduled Tribes
out of which only 6 candidates could qualify for interview after screening written
examination and out of 6 interviewed candidates belonging to Scheduled Tribes was
absolute and, therefore, the MPSC has not recommended any other candidate against
the vacancies specifically reserved for Scheduled Tribes candidates. So far as posts
reserved for the candidates belonging to the Scheduled Castes are concerned,
recommendations have been made for filling up the posts as far as scheduled caste
candidates are concerned, now there is no backlog whatsoever.
8. In affidavit-in-reply to writ petition No. 4133/1991 filed on behalf of the MPSC
it is stated that the petitioner was interviewed on 25th September 1991. However, no
record of duration of the interview of each candidate is kept. The petitioner was not
recommended on the basis of the performance in the interview. It is further stated that
the Commission is an autonomous body established under Art.515 of the constitution
of India and functions of the Commission are enervated in Article 320 of the
Constitution of India. The Commission adopts various methods for selection of
507
suitable candidates i.e. competitive examination and/or interview or screening test and
interview. It is further stated that for the selection of the posts advertised in this case
the Commission decided to have written test for a limited purpose of short-listing the
candidates and interview of candidates qualified in the test as a method for selection.
It is that this procedure has been upheld by the Hon'ble Supreme Court of India in
Civil Appeal No. 1971/1986 preferred by the Commission against the judgment of the
Bombay High Court in writ petition No.57/1986. It is further stated that it was clearly
mentioned in the notification dtd 26th September 1990 that screening test for short-
listing of candidates to be called for interview would be held and marks obtained by
candidates in the test would not be taken into consideration for the purpose of final
selection and that selection would be made on the basis of performance at interview
alone. It is further stated that so far as scheduled caste is concerned, candidates
belonging to scheduled castes have been recommended by the Commission for all the
reserved vacancies in respect of the Scheduled Caste.
9. The main affidavit-in-reply is filed in writ petition No. 206/1992. It is
stated that the panel for the interview was constituted in accordance with the rules
framed by the MPSC to regulate the internal procedure of work called, "Maharashtra
Public Service Commission Rules of procedure; 1981". It is contended that the MPSC
being a body created under the constitution of India, has authority to regulate its own
procedure regarding conduct of examinations and interviews, etc. Rule 8 of the Rules
gives authority to the Chairman to constitute or re-constitute the committee of one or
more members, including the Chairman, and assign to each committees specific item
of work. Under Rule 8(4) of the rules the Chairman is empowered to constitute
Interview Committees consisting of Chairman and/or one or more members. Under
the rules the Chairman alone can interview the candidates or he can appoint one or
more members. It is further stated that interviews were held from 5th September 1991
to 16th October 1991. Paragraph 5 of the affidavit-in-reply reveals that from 5th
September 1991 to 15th September 1991 the panel consisted of the Chairperson Smt.
Patil and another member of the Commission Shri. S.P. Sing. As Shri. S.P. Sing was
not available because of his personal difficulties the Chairperson reconstituted the
Committee by substituting Shri (Dr.) B.B. Shinde, another member of the MPSC for
Shri S.P. Sing and the said reconstituted Committee interviewed candidates from 16th
September 1991 to 25th September 1991. As Shri Shinde was not available, the
Chairman again reconstituted the Committee consisting of the Chairperson Smt. Patil
and Dr. Tawade, another member of the MPSC and this panel interviewed the
candidates from 26th September 1991 to 30th September 1991. As Mr. S.P. Singh
resumed his duties and had become available the Committee was again reconstituted
508
consisting of the Chairperson Smt. Patil and Mr. S.P. Singh and interviewed the
candidates on 1st and 3rd October 1991. On 4th October 1991, the panel consisted of
Smt. Patil, Chairperson, and Shri Kanga, member of the MPSC and from 7th October
1991 to 16th October 1991 it consisted of the Chairperson of MPSC Smt. Patil alone.
The affidavit further states that on all the dates of the interviews in respect of all the
candidates Hon'ble Mr. Justice Puranik was present as the representative of the High
Court and Hon'ble Mr. Justice Puranik took part in the deliberations and his views
were considered. Paragraph 6 of the affidavit further reveals that the Chairperson of
the MPSC Smt. Patil and Hon'ble Mr. Justice Puranik were present all throughout the
interviews of all the candidates and Hon'ble Mr. Justice Puranik took part in the
deliberations and also he has submitted the list of the candidates. It is further stated
that taking into consideration the views of Hon'ble Mr. Justice Puranik, finalised list
was circulated amongst all the members of the Commission and also to Hon'ble Mr.
Justice Puranik who has approved the said list and the selection was unanimous. It is
therefore, contended on behalf of the MPSC that the procedure followed by the
Commission is perfectly valid and legal.
The contention of the petitioner that the decision of selecting the candidates
interviewed after 09.10.1991 is taken by only one member, namely the Chairperson is
untenable as from 7th October 1991 to 16th October 1991 the Chairperson and Hon'ble
Mr. Justice Puranik were the members of the panel and both of them interviewed the
candidates. The affidavit further stated that in the entire process of interviews, there
arose no question whether vote was required. That the recommendations are to be
made by the Commission as a whole a contemplated under Art. 320 of the
Constitution and the Commission, after considering the entire aspect of the matter, has
recommended the select list of the candidates to the Government for appointment to
the posts of Civil Judge (JD) and Judicial Magistrate (FC). It is further stated that the
details of deliberations between the members of the panel is not required to be
communicated to the candidates. It is reiterated that the views expressed by Hon'ble
Mr. Justice Purnik were duly considered and list was prepared after it was circulated to
all the members of the Interview Committee. It is further stated that in the absence of
any provision, the constitutional body like Public Service Commission, can frame its
own procedure and the procedure for the interview, which was followed was in
conformity with the rules formed under Art.234 of the Constitution of India. It is
further stated that there were 254 vacancies for which Commission received about
2060 applications and there was no other alternative before the Commission but to
hold Screening Test to short-list the candidates for interview. It is further submitted
that the aforesaid procedure was approved by the Supreme Court in the case of State
509
of Maharashtra V Arun Kumar and others. It is further submitted in the affidavit that
duration of the interview is not the only criteria to select the candidates. It depends on
the response given by the candidates at the time of the interview and judged by the
members of the Interview Committee who are experts in the filed and the Hon'ble
Court should not disturb the assessment by the Interview Committee. It is further
asserted that the procedure for the interview and time to be devoted to every candidate
depends on several factors and it is for the Interview Committee to decide upon the
time of the interview. It is also stated that the interviews were held by the Committee
formed by the Chairperson an recommendation of the Commission as such have been
forwarded to the Government for making appointments and there is full compliance of
Art.320 of the constitution of India. It is also submitted that the written examination
was conducted only to our tail the number of candidates to be interviewed and the
came should not be compared with the competitive examinations held for appointment
to other Civil Services. Under the circumstances, the MPSC has submitted that no for
interference is out and the petitions should be rejected.
10. Shri S.B. Kulkarni, Advocate, Shri V.R. Patil, Advocate, Shri A.H. Joshi,
Advocate, appeared on behalf of the petitioners. In fact Advocate Shri. S.B. Kulkarni
himself is petitioner in writ petition No. 206/1992. Shri Kakade, learned Government
Pleader, appeared for the state of Maharashtra and Shri A.B. Naik, Advocate, appeared
for the MPSC in all the petitions. We have heard the learned Advocate for both sides
at some length and almost as a final hearing matter and the hearing took place for
almost the whole day.
11. Now, so far as the challenge to the validity of Rule 4(4) of the Bombay
Judicial Service Recruitment Rules, 1956, is concerned, we do not find much force in
the same. Under the provisions of Art.234 of the Constitution of India, appointments
of persons other than District Judges to the judicial services of the State shall be made
by governor of the State in accordance with the rules made by him in that behalf after
consultation with the state Public Service Commission and with the High Court
exercising jurisdiction in relation to such State. The Bombay Judicial Service
Recruitment Rules are admittedly made by the Governor of Bombay I exercise of
power conferred by Art.234 after consultation with the state Maharashtra Public
Service Commission and with the High Court exercising jurisdiction in relation to
such State. The Bombay Judicial Service Recruitment Rules are admittedly made by
the Governor of Bombay in exercise of power conferred by Art. 234 after consultation
with the Maharashtra Public Service Commission and the High Court of Bombay.
Rule 4(4) of the Bombay Judicial Service Recruitment Rules, 1956, reads as under:
510
"4(4) (i) appointments to the posts of Civil Judge (Junior Division) and Judicial Magistrates of the First Class shall be made by nomination from members of the B&T (or, in special circumstances, by re-employment of retired Civil Judges (Junior Division) or by –nomination from among officers of the other services): (11) the appointments shall be made by the Governor in consultation with the Commission (except that it shall not be necessary to consult the Commission in re-employing retired Civil Judges (Junior Division): Provided that the Commission shall invite a representative of the High Court to be present at the interview held by the Commission for this purpose and the representative so present may take part in the deliberations of the Commission but shall not be ensiled to vote: (iii) (appointments other than appointments of received Civil Judges
(Junior Division) shall) be made from among candidates who- (a) are ordinarily not less than twenty-one and not more than
(thirty five years) (forty years) in the case of candidates belonging to Committee recognised as Backward by Government for purpose of recruitment.
(b) (Unless otherwise expressly directed, ordinarily have practiced an Advocates) attorneys or pleaders in the High Court or Courts subordinate this to for not less than three years of the last date prescribed for the submission of the applications:
(c) are certified in Granter Bombay by the Principal Judge of the City Civil Court or the Chief Judge of the Small causes Court or the (Chief Metropolitan Magistrates) and elsewhere by a District Judge, to have sufficient knowledge of (Kalathi), to enable them to speak, read, write and translate with facility into English and vice versa. (Note:- In the case of policy prosecutors serving under the Government who apply for the posts, their service in that capacity should be taken on practice at the Bar).
(iv) Unless otherwise expressly directed, every person appointed under the last for going sub-rule shall be on probation for a period of two years and on the expiry of such period he may be confirmed if :- (a) there is a vacancy; (and) (b) his work is found satisfactory:
(v) Appointment by re-employment of retired Civil Jude (Junior Division) shall be made by the Governor after consultation with the High Court. Appointment by nomination from among officers of other services shall be made by the Governor after consultation with the High Court ad the Commission".
It is suggested that the disability to vote makes the presence of the
representative of the High Court ineffective. We do not agree. It is an admitted
position that Shri justices Puranik, Sitting High Court Judge of the Bombay High
Court, was present throughout all interviews of all the candidates. The affidavit-in-
reply filed on behalf of the MPSC clearly states that on all the dates of the interviews
511
Hon'ble Mr. Justice Puranik was present and took part in the deliberations an his views
were considered. The affidavit further states that taking into consideration the views
of Mr. Justice Puranik the list was finalised and it was circulated amongst all members
of the Commission and also the Hon'ble Mr. Justice Puranik who has approved the
said list. The selection, it is stated, was neanirous. It is further reiterated that the
views expressed by Hon'ble Mr. Justice Puranik were duly considered and not only the
select list was approved by all the members of the Commission but it was also fully
approved by Hon'ble Mr. Justice Puranik.
In the case of Ashok Kumar Yadav Vs. State of Hariyana and others (1985(4)
SCC P 417), in paragraph No. 31, the Supreme court has observed that when
selections to the Judicial Services are being made, a sitting Judge of the High Court to
be nominated by the Chief Justice of the State should be invited to participate in the
interview as an expert and sine such sitting Judge comes as an expert, who, by reason
of the fact that he is a sitting High court Judge, knows the quality and character of the
candidates appearing for the interview, the advice given by him should ordinarily be
accepted, unless there are strong and cogent reasons for not accepting such advice and
such strong and cogent reasons must be recorded in writing by the Commission and
members of the Public Service Commission. The Supreme Court gave such direction
to the Public Service Commission in every State.
12. In the facts before us it is clear that Hon'ble Mr. Justice Puranik, sitting
Judge of the Bombay High Court, was present all throughout the interviews. He took
part in the deliberations. The views expressed by Mr. Justice Puranik were duly
considered an infact unanimous decision was taken by the MPSC which was also
approved by Hon'ble Mr. Justice Puranik. We are satisfied that the directions given by
Hon'ble Supreme Court were fully complied with. The provision that the High Court
representative shall not be entitled to vote is absolutely proper insomuch as he is not
the member of the MPSC. The MPSC is constituted under Art.315 and Art.316 of the
Constitution of India. The functions of the Public Service Commission are enlisted
under Art. 320 of the Constitution of India. Thus the MPSC is a constitutional
functionary. As such, no person other than the duly appointed member cannot as
member thereof. When, under the rule framed by the Governor, under Art.234 of the
Constitution of India, the sitting Judge is present and his views are almost binding, in
our opinion, mere disability to vote does not in any way infringe the provisions of
Art.234 of the Constitution. We have also been unable to the appreciate how the said
rule infringes the provisions of Art. 50, which are to the effect that the State shall take
steps to separate the Judiciary from the Executive in the Public Service of the State.
512
13. So far as the method and procedure of the MPSC in this behalf is
concerned, it is firstly challenged on the around that the method, procedure and rules
in that behalf are not made by the Governor. In that behalf the petitioners relied upon
the judgment of the Mysore High Court in the case of K.N. Chandra Sekhere Vs. State
of Mysore (ATR 1963 Mysore 292) (V 50). In the said judgment it was laid down that
in the absence of any rule prescribing the qualifying marks, or in the absence of any
power in the Governor to delegate his authority to determine the qualifying marks to
the Public Service Commission, the commission is not competent to determine the
qualifying marks. Identical challenge was considered by the Supreme Court in the
case of State of U.P V Rafiquddin (1987 Supp) acc 401). In paragraph 9 of the
judgment in the said case the Supreme Court has observed that under Rule 19 of the
U.P Civil Services (Judicial Branch) Rules, 1951, the commission is required to judge
the suitability of a candidate on the basis of sufficiently high marks obtained by a
candidate in the viva voce test, it has to fix some percentage of marks which in its
opinion may be sufficient to the suitability of a candidate. In the absence of a fixed
norm, there could be no uniformity in assessment suitability of candidates in the viva
voce test. The Commission had, therefore, power to fix the norm. The Supreme
Court further observed that the viva voce test is a well recognised method of judging
the suitability of the candidates for appointment to public service and this method had
almost universally been followed in making selection for appointment to public
services. In paragraph 10 the Supreme Court referred to the case of K.H. Chandra
Sekhara decided by the Mysore High Court. The Supreme Court notes in the said
paragraph that, however, the full Bench of the Mysore High Court had not approved
the view taken in K.M. Chandra Sekhara's case as can be gathered from the case of
T.N. Manjula Devi V State of Karnataka (1980 Tab.TC759) wherein the Full Bench
had held that the process of selection of suitable candidates to a responsible post
involved a mini standard to be crossed by candidates and that had be fixed by the
selection committee.
14. In this behalf it is also relevant to notice that the Supreme Court was
concerned with this very procedure followed by MPSC and this very Rule 4(4) of the
Bombay Judicial Service Recruitment Rules, 1956, in Civil Appeal No 1971/1986
decided by the apex court on April 29, 1987. In the said appeal, the judgment of
Bombay High Court rendered in Writ Petition No. 57/1986 was challenged by the
state of Maharashtra. In the said writ petition challenge was to the procedure and
method evolved by the MPSC for filling up 150 posts of Civil Judge (Junior Division)
and Judicial Magistrate (FC). In the said case also it was compulsory for all the
513
candidates to appear for a written examination by way for scrutiny before the
candidates were interviewed for viva voce test. The High Court had faulted the
procedure as, in its opinion, it was essential to get the approval of the Governor for
introduction of new rules or modification of the existing rules. The Supreme Court in
the said case specifically examined the procedure for appointment of Civil Judges as
guided by Rule 4(4) of the Bombay Judicial Services Recruitment Rules. The
Supreme Court observed that these rules are in conformity with Art.234 of the
Constitution. It further observed that the procedure might be evolved by administrative
directions provided those do not run counter to the requirement as are enjoined by the
Constitution. The Supreme Court further observed that the Government cannot amend
or supercede statutory rules are silent on any administrative instructions but if the rules
are silent on any particular point the Government can fill up the gap and supplement
the rules and issue instructions not inconsistent with the rules already framed. The
Supreme Court further observed that this position in law has been universally applied
by the open Court and other courts in the field where there in no specific rule. I t was
further observed that in selection of the nature wherein over 2100 candidates had
offered their candidature, it would have been practically impossible to select the
candidates without the written test. To have interviewed 2100 candidates with the help
of High Court Judge would have been practically impossible. Administrative rules
under the constitution are made to be no construed as these work and effectuate the
purpose for which these were intended. The Supreme Court further observed that the
procedure was evolved in consultation with the Government, Public Service
Commission and the High Court. The three major agencies were involved in the job
of selection and framing of the rules. It further appears to be and just to have
preliminary scrutiny by written examination no that after that in interviews salient
requirements can be focused. It is a rational and fair method. It is not an uncommon
method. It saves time and avoid a waste. The Supreme Court further observed that
the grievance which seems to have impressed the High Court was that the petitioner
right to interview has been interfered with but the person who is eligible for the job
has no right as such to the interview. He has right to be considered by a procedure
which is fair, just and reasonable and common to all.
15. In facts before as identical procedure was followed, namely, that the
candidates to be eligible were required to be not less than two years and not more than
35 years of age on the appointed date the upper age limit being released upto 40 years
in case of candidates belonging to committee recognised as backward by the
Government of Maharashtra for the purpose of requirement was prescribed. The
candidates were further required to have practised as an Advocate, attorney or pleader
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in the High Court at Bombay or in the Courts subordinate there to for not less than
three years. They were required to have sufficient knowledge of Marathi to enable
them to speak, read, write and translate with facility into English and vice versa. It
was further provided that screening test consisting of two papers of descriptive types
on certain subjects will be held for short-listing of the candidates to be called for the
interview. All candidates, whose applications were filled properly, were admitted to
the written test without scrutiny of their eligibility for appointment to the post. It was
further specifically mentioned that marks obtained by the candidates in the test shall
not be taken into consideration for the purpose of final selection nor they will be
communicated to be candidates. Selection was to be made on the basis of their
performance at interview only. As such, the challenge to the constitutional validity of
rule 4(4) of the Bombay Judicial Service Recruitment Rules, 1956, must fail.
16. The second challenge was that the selection was solely made on the basis of
interview test. In view the judgment of the Supreme Court in the case of state of
Maharashtra Vs. Arunkumar Ganeshrao and other in Civil Appeal No. 19/11/1986,
already referred to above, the argument need not as any further. Identical procedure
are approved by the apex Court in respect of these very coats. Secondly in view of the
judgment of the Supreme Court is the of Lila Dhar V State of Rajasthan and others
reported in (1981 & SCC P. 159 it cannot be entered as of law that in every the
selection has to be made on the basis of written test ad in no can it can be made solely
on the basis of viva voce. In fact the first sentences of the judgment reads as under:
" what is the ideal of selection in a public service by written examination, by oral test (viva voce),or by a combination of both test".
The Supreme Court observed that while a written examination concerned
candidate's knowledge and intellectual ability, an interview test is valuable to uses a
candidate's overall International and personal qualities. While a written examination
has certain distant adventure over the interview-test there are yet no written tests
which can evaluate a candidate's initiative, alertness, resourcefulness,
dependableness, co-cooperativeness, capacity for clear and logical presentation,
effectiveness in discussion, effectiveness in meting and dealing with others,
adaptability, judgment, ability to make decision, ability to lea, intellectual and normal
integrity. Some of these qualities may be evaluated, perhaps with some degree of
error, by an interview-test, much depending on the constitution of the Interview
Board.
(a) In paragraph 6 of the judgment the Supreme Court has observed that if both
written examination ad interview-test are to be essential features of proper selection,
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the question may arise as to the weight to be attached respectively to them. In the
case of admission to a college, for instance, where the candidate's personality is yet to
develop and it is too early to identify the personal qualities for which greater
importance may have to be attached in Inter life, greater weight has per force to be
given to performance in the written examination. The importance to be attached to
the interview-test must be minimal. On the other hand, in the case of services to
which recruitment has necessarily to be made from persons of nature personality,
Interview-test may be the only way, subject to basic one essential academic and
professional requirements being satisfied. To subject such persons to a written
examination may yield unfruitful and negative results, apart from its being an
cruelty to these persons. There are, of course, many services to which recruitment is
made from younger candidates whose personalities are on the threshold of
development and who shows sign of great promise, and the discerned may in an
interview-test, catch a glimpse of the further personality. In the case of such services,
where sound selection must combine academic ability with personality promise. some
weight has to be given, though not much too great a weight to the interview-test.
There cannot be any rule of thumb regarding the precise weight to be given. It must
vary from service to service according to the requirements of the service, the
minimum qualifications prescribed, the age group from which the selection is to be
made, the body to which the took 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 for research. it is not for the courts to pronounce upon it unless exercised
weight has been given with proven or obvious oblique motive.
(b) In paragraph 7 of the judgment the Supreme Court observed that the Rajasthan
Judicial Service Rules have been made by the Governor of Rajasthan in consultation
with the High Court of Rajasthan and the Rajasthan Public Service Commission. The
High Court may be expected to know the precise requirements of Judicial Service
Commission is an expert body thoroughly conversant with recruitment policies and
selection methods. Both are well-acquainted with the particular needs of their State
and the people. Both the High Court ad Public Service Commission are independent
bodies outside the executive control, occupying special position, enjoying special
upper the constitution. Neither is an outside agency. Both are well-acquainted with
particular needs of the and the people. If the Governor, is consultation with the High
Court and the Public Service Commission of the State makes rule stipulating seventy-
five per cent of the marks for the written examination and twenty-five percent of the
interview-test, an what basis of a court say that twenty-five percent for the interview-
test is on the high aide? It must not also be forgotten that the interview –test is
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generally conducted and was, in the present case, conducted by a body consisting of a
Judge of the High Court, the Chairman and a special invitee export. There can surely
be no legitimate grievance or hint of arbitrariness against this body. Yet another
factor worthy of consideration in that the candidates expected to offer themselves for
selection are not raw graduates freshly out of college but are persons who have
already received a certain amount of professional training. The source material is
such that some weightage must be given to the interview-test can it possibly be said
that twenty-five per cent of the total marks is an exaggerated weightage.
(c) In paragraph 8 the Supreme Court observed that the rules themselves do not for
the allocation of marks under different at the interview-test. The criteria for the
interview-test has been laid down by the Rules. It is for the interviewing body to take
general decision whether to allocate marks under different head or to award marks in
a single lot. The award of marks under different heads may lead to a distorted picture
of the candidate on occasions. On the other had the totality of the impression created
by the candidate or the interviewing body may give a of the candidate's personality.
It is for the interviewing body to the appropriate period of making at the selection to
such service. There cannot be any magic formulas in the matter and courts cannot it
in judgment over the method of marks employed by interviewing bodies unless, as we
it is proven or obvious that the method of making was chosen with oblique motive.
(d) The Supreme Court, referring to the case of Ajay Hawia, observed as under:
"The words "or even in the matter of public employment" occurring in the first extracted passage and the reference to the marks allocated for the interview test in the Indian Administrative Service examination were not intended to lay down any wide, general rule that the same principle that applied in the matter of admission to colleges also applied in the matter of recruitment to public services. The observation relating to public employment was per incuriam, since the matter did not fall for the consideration of the Court in that case. Nor do we think that the Court intended any wide. Construction of their observation. As already observed by us, the weight to be given to the interview-test should depend on the requirement of the service to which recruitment in made, the source-material available for requirement, the composition of the Interview Board and several like factors. Ordinarily recruitment to public service in regulated by rules made under the provision to Art. 309 of the Constitution and we would be usurping a function which is not ours, if we try to re-determine the appropriate method of selection and the relative weight to be attached to the various tests. If we do that we would be re-writing the rules but we guard ourselves
517
against being understood as saying that we would not interfere over in cases of proven or obvious oblique motive".
17. In this respect, it may be relevant to notice para 23 of judgment of the
Supreme Court in the case of Ashok Kumar Yadav, referred to above which reads as
under:
" This Court speaking through Chinappa Reddy, J. pointed out in Lila Dhar V State of Rajasthan that the object of any process of selection for entry into public service is to secure the best and the most suitable person for the job, avoiding patronage and favourities. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service. So open competitive examination has come to be accepted almost universally as the gateway to public service. But the question is how should be competitive examination be devised? The competitive examination may be based exclusively on written examination or it may be based exclusively on oral interview or it may be a mixture of both. It is entirely for the Government to decide what kind of competitive examination would be appropriate i a given cases. To quote the words of Chinappa Reddy J." In the very nature of things it would not be within the province or even the competence of the Court and the court would not venture into such exclusive tickets to discover ways out, when the matter are more appropriately left" to the wisdom of the experts. It is not for the courts to lay down whether interview test should be held at all or how many marks should be allowed for the interview test. Of course the marks must be minimal so as to avoid charges of arbitrariness, but not necessarily always. There may be posts appointments where the only proper method of selection may be by a viva voce test. Even in the case of admission to higher degree courses, it may same times be necessary to allow a fairly high percentage of marks for the viva voce test. That is why rigid rules cannot be laid down in these matters by courts. The expert bodies are generally the best judges. The Government aided to experts in the field may appropriately decide to have a written examination followed by a viva voce test. It is also relevant to notice the paragraphs 30,31,32 and 33 of the judgment of the Supreme court in the case of Mohinder Sain Garg V. State of Punjab 991) 1 SCC 662), which are as under:
30. The important case in chronology is of Ashok Kumar Yadav V. State of Haryana decided by a bench of four Judges on which both the parties have placed reliance, for in this case their Lordships considered all the earlier cases including the case of Lila Phar. In Ashok Kumar Yadav case it was held that there cannot be any hard and fast rule regarding the praise weight to be
518
given to the viva voce test as against the written examination. It must very from service to service according to age group from which selection in to be made, the body to which the task of holding the viva voce test in proposed to be entrusted and a host of other factors. It is essentially a matter determined by experts. The courts does not possess the necessary equipment and it would not be right for the court to pronounce upon it, unless to use he words of Chinappa Reddy in Lila Dhar case "exaggerate weight has been given with proven or obvious oblique motives".
31. However, it is important to note that in Ashok Kumar
Yadav case Rule 9 clause (1) of the Punjab Civil Services (Executive Branch) Rules, 1930 which prescribed a competitive examination for recruitment to posts in Haryana Civil Services (Executive) and other allied Services came up for consideration. The rule provided for a competitive examination which included a written examination as well as viva voce. For recruitment to 61 posts in Haryana Civil Services (Executive) and other allied services, over 1300 candidates obtained more than 45 per cent marks and were thus qualified for being called for viva voce examination. Before the viva voce examination took place 119 posts became available for which more than 1300 candidates obtaining 45 per cent of marks or more were called or viva voce. The court in clear terms deprecated the calling for interview of 1300 and odd candidates and observe that by obtaining a minimum of 45 per cent marks did not by itself entitle a candidate to insist that he should be called for the viva voce test. There was no obligation on the Haryana Public Service Commission to call for the viva voce test. All candidates who satisfied the minimum eligibility requirement. It was also held that where there was a composite test consisting of a written examination followed by a viva voce test, the number of candidates to be called for interviews in order of the marks obtained in the written examination, should not exceed twice or at the biggest thrice the number of vacancies to be filled. However, the court did not set aside the selection on the above grounds because the practice which was being consistently followed was applied in the above case also and what was done was nothing exceptional. We are also of the view in the facts of the present once that though it was not proper for the selection committee to have called as much as more than 1200 candidates for selection of 54 posts, but the selection cannot be vitiated merely on this ground as such action is not tainted by any mala fide or oblique motive. The respondents in the reply have also stated that they had called all the eligible candidates as the same practice was followed from the year 1970 and according to the rules all such candidates had qualified in the written examination for being called in the viva voce test.
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32. In Ashok Kumar Yadav case which related to public
employment, it was held in clear terms that as far as candidates in general category are concerned, it would be prudent and safe to follow the percentage adopted by the Union Public Service Commission in case of selection. To the Indian Administrative Service ad other allied services. The percentage of marks allocated for the viva vice test by the UPSC in the above services was 12.2 per cent and that has been found to be fair and just as directing a proper balance between the written examination and the viva voce test. A clear direction was given in the following terms (SCC P455, para 29 "(this Court) would therefore direct that here after in case of selections to be made to the Haryana Civil Services (Executive Branch) and other Allied services, where the competitive examination consists of a written examination followed by viva voce test, the marks allocated for the viva voce test shall not exceed 12.2 per cent of the total marks taken into account for the purpose of selection". The Court further suggested that this percentage should also be adopted by the Public Service Commission in other states, because it was desirable that there should be uniformity in the selection process throughout the country and the practice followed by the UPSC should be taken as a guide for the State Public Service commissions to adopt and follow. The Court also considered the effect of allocation of a high percentage of marks for viva voce test in Ashok Kumar Yadav case. It was clearly held that the allocation of 200 marks for the viva voce test out of a total of 900 marks for the generality of candidates an a total of 600 marks for ex-servicemen was arbitrary and excessive and it had the effect of distorting the entire process of selection. The Court further took note of the fact that the above percentage of 33.3 per cent marks in case of ex-service officers an 22.10 marks in cases of general candidates, had been allocated for the viva voce test in force for almost 50 years and everyone had acted on the basis of these rules. It was considered that if the prescription contained in the rules was to be set aside, it would upset a large number of appointments already made on the basis of such selections and the integration and efficiency of administrative machinery would be seriously jeopardised. The court in the above circumstances did not set aside the selections already made on the basis of on unduly high percentage of marks allocated for the viva voce test. The court further observed that an unduly large number of candidates were called for interview and as the marks allocated in the viva voce test were excessively high, it was possible that some of the candidates who might have otherwise come in the select list were left out of it, perhaps unjustifiably it considered it proper to direct that all the candidates who secured a minimum of 45
520
per cent marks in the written examination but who could not find entry in the select list, should be given one more opportunity of appearing in the competitive examination which would now have to be held in accordance with the principles laid down in the judgment and this opportunity should be given to them, even though they may have passed the maximum age prescribed by the rules for recruitment. We may, in the same context, mention that the case of State of UPVs. Rafiquddin and Mohmood Alam Tariq V State of Rajasthan already cited above, are not cases directly dealing with the controversy raised before us and are clearly distinguishable.
33. In our view Ashok Kumar Yadav case clinches the
issues raised before us and being a decision given by four Judges is also binding on us. That was a case relating to public employment and a direction was given to all the Public Service Commissions to follow the marks allocated for viva voce test as done by the UPSC which was 12.2 per cent of the total marks. Ashok Kumar Yadav case was decided in 1985 and we fail to understand as to why the State of Punjab did not follow the same for making selections in 1989 for the posts of Excise and Taxation Inspectors. It is no doubt correct that the selection of Taxation and Excise Inspectors is done by a subordinate selection body and not by Public Service Commission yet no valid reason has been given before us by learned counsel for the respondents as to why the principle enunciated in Ashok Kumar Yadav case should not be applied in these cases as well. Even if Ashok Kumar Yadav case may not in terms apply in the cases before us to the extent of laying down 12.2 per cent of the total marks for viva voce test which was made applicable for selections to be made by UPSC, we deem it proper to lay down after taking in view the dictum of all the authorities decided so far that the percentage of viva voce test in the present cases at 25 per cent of the total marks is arbitrary and excessive. There could be no gainsaying that viva voce test cannot be totally dispensed with, but taking note of the situation and conditions prevailing in our country, it would not be reasonable to have the percentage of viva voce marks more than 15 per cent of the total marks in the selection of candidates fresh from college/school for public employment by direct recruitment where the rules provided for a composite process of selection namely written examination and interview.
18. Under the circumstances, we feel that it cannot be laid down as a matter of
law that written test must be held in all cases for selection of candidates for
employment in public service. It depends on several factors. In the presents case,
inasmuch as the candidates had already passed their graduation in law and who were
also required to have practised as a legal practised as a legal practitioner for at least
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three years and as the statutory rules framed by the Governor under Art.234 did not
prescribe any compulsory written test and as the Rule enjoins upon the State Public
Service Commission that the interview committee must include sitting High Court
Judge and in view that the mandate of the apex court in paragraph 31 in Ashok Kumar
Yadav's case was fully and completely complied with, we do not think that selection
based only on viva voce test in the facts and circumstances of the case is vitiated in
any way. It is an admitted position that the written test held by the MPSC was only
for the purposes of scrutiny with a view of short-listing the candidates. In view of the
fact that identical procedure with reference to this state in respect of these very posts
was approved by the apex court in the case of State of Maharashtra V. Arun Kumar
and other, already referred to above, we do not find any force in the submission that
the marks obtained in the written test for scrutiny ought to have been considered.
19. The further challenge is on the basis of the fact that interview committee
consisted of different members for different batches of candidates. The submission is
that in view of different compositions of interview committee the evaluation must
have been different for different candidates and this also results in or each of
provisions of Art. 14 of the Constitution of India. In the behalf the learned Counsel
for the MPSC placed before the Court the rules framed by the Commission to regulate
the internal procedure work. Rule 3 provides that the work coming before the
Commission be dealt with either by the Commission or by a Committee of one or
more members formed under Rule 4(1) or by the Chairman as provided by the rules.
Rule 4 provides that the Chairman shall constitute, reconstitution the committee of one
or more members, including the Chairman an assign to each committee specific items
of work. The Chairman may in like manner make a change in the work assigned to
such committee. Sub clause (2) of Rule 4 provides that the committee so formed shall
remain in operation till they are reconstituted by the Chairman. Under rule 8 sub
cause (4) where recruitment to any post is required to be made by nomination, for the
purpose of interview of the applicants selected for interview under sub rule (1) the
Chairman may constitute interview committee consisting of the Chairman and/or one
or more members. Under sub rule (7) the President of the Interview Committee shall
communicate to the Secretary the decision of the Interview Committee who shall draw
up the minutes of the selection and submit them to the members of the interview
committee for their approval. Under sub rule (8) of rule 8 the minutes thereafter are
circulated among other members of the commission for their approval and after
approval is received necessary recommendations against the vacancies shall be sent to
the government in accordance with the minutes no approved. Under the rules,
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therefore, it is for the Chairman of the MPSC to constitute the interview committee.
There is also power to reconstitute the same.
20. Undoubtedly, as admitted in the affidavit-in-reply, the composition of the
interview committee was different on different dates. Now, normally, the Interview
Committee should consist of the same individuals as members so that each candidate
is judged by an identical panel. However, in this behalf it may be useful to refer to
some observations made by the Supreme Court in the case of Ashok Kumar Yadav. In
paragraph 18, after referring to the judgment of the Supreme Court in A.K. Kaipak's
case the Supreme Court observed as under:
" But the situation here is a little different. Because the selection of candidates to the Harayana 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 Harayana Public Service Commission which is a Commission set up under Art. 316 of the Constitution. It is a specified number of Members and is a constitutional authority. We do not think that the principle 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 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 some times happen that no other member is available to take the place of such member ad 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 candidates 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.
21. In view of the fact that under the rules the appointment to the judicial posts
concerned is to be made by the Governor in consultation with the Public Service
Commission an in view of the fact that each member of the Public Service
Commission holding viva voce examination functions not as individual but as Public
Service Commission, it cannot be stated as a matter of law that change in the
523
composition of the Interview Committee of the Public Service Commission per results
into arbitrariness. No other person than the duly appointed member of the Interview
Committee. Under the circumstances, the power exercised by the Chairman of the
Public Service Commission to constitute and reconstitute the Interview Committee is
reasonable. The members of the Public Service Commission are appointed on the
basis of large administrative experience as also proven eminence in the administrative
field. Under the circumstances, the substitution of one member by another member of
MPSC per as will not be sufficient to vitiated the evaluation by such an Interview
Committee on the ground of different candidates. Secondly, not only Smt. Patil,
Chairperson of MPSC was present throughout the interviews of all the candidates but
the recommendations of the Selection Committee also were accepted unanimously by
all the members of the Commission. Thirdly, admittedly the Sitting High Court Judge,
whose opinion, as per the direction of the apex Court in ordinarily binding on the
Maharashtra Public Service Commission, was not only present all throughout the
interviews on each and every day but his opinion was accepted and the final list was
approved not only by all the members of the MPSC but also by the Honourable Judge.
In name of the petitions any personal bias or mala fide are alleged against any of the
members. Under the circumstances, we cannot use any prejudice having been suffered
by either the petitioners or other candidates in the matter and consequently the final
list of recommendations cannot be vitiated on this ground.
22. It was also submitted that the interviews lasted hardly for three to five
minutes. Apart from the fact that this period, whether it was three to five or ten
minutes, cannot be accurately stated by the petitioners nor could be recorded in respect
of each candidates we do not think that there can be any hard and fast rule regarding
the period of interview. In paragraph 20, in the case of Ashok Kumar Yadav, the
Supreme Court has undoubtedly observed that if a viva voce test is to be carried out in
a thorough and scientific manner, as it must be, in order to arrive at a fair and
satisfactory evaluation of the personality of the candidate, the interview must take
anything between ten to thirty minutes. However, we do not think that mere fact that
the interviews were allegedly not held for more than three to five minutes in respect of
a particular candidates, it would vitiate the entire selection process.
23. In writ petition No. 4133/1991 additional ground was pressed in service to
the effect it was obligatory upon the State and also the Commission to complete the
backlog of the backward class candidates in the reserved category. It was faintly
suggested that so far as the backward class candidate are concerned, they ought to
have been selected so as to wipe up the backlog. It is very difficult to candidate the
524
submission because even though there can be reservation in respect of backward class
candidates, the minimal ability and suitability for being appointed to a particular post
cannot be dispend with, Apart from that it is pointed out in the affidavit-in-reply in
W.P. No. 207 of 1992 that 54 posts of Civil Judges (JD) and Judicial Magistrate (FC)
were exclusively reserved for candidates belonging to backward classes and thereafter
applications for additional 200 posts for all categories were invited. It is further
mentioned that out o about 484 candidates who were interviewed, final list of
recommendations consists of 254. It is mentioned that out of 254, 54 posts were
exclusively reserved for reserved candidates whereas out of 200 posts for all
categories 68 posts were reserved as per 34% quota. The affidavit further states that in
respect of 61 posts reserved for Scheduled Tribes, only 10 applications were received
and only six survived the scrutiny by the written test qualifying for interview and out
of them only two candidates can be recommended after interview for appointment. As
the reservation in respect of Scheduled Tribe candidates is absolute, no other
candidate, not belonging to the Scheduled Tribes, could be recommended. It is further
mentioned in the affidavit-in-reply that so far as the reservation for the Scheduled
Caste candidates is concerned, the candidates belonging to Scheduled castes for all the
reserved posts have been recommended. Under the circumstances, no fault could be
found with the recommendations on this count also.
24. All the petitions, therefore, stand rejected.
At this stages, S/Shri V.R. Patil and S.B. Kulkarni, Advocates, appearing for the
petitioners, prayed for leave to file an appeal to the Supreme Court. In the facts and
circumstances of the case, we reject the application.
***
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MAHARASHTRA ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH Original Application No.1008 of 1993
D.D. 6.10.1999
Hon'ble Member A.R.Vazalwar (J) Hon'ble Member V.H. Sakhalkar (A)
Shri Sandeep Maruti Chavan – Applicant Vs. The State of Maharashtra & Anr. – Respondents As the number of candidates was large, P.S.C. adopted criteria for short listing the candidates – Candidates not fulfilling the criteria approached the Tribunal – Tribunal upheld the procedure adopted by P.S.C.
J U D G M E N T
Heard Smt. Poonam Mahajan, learned advocate for the petitioner and
Shri S.R. Atre, learned Presenting Officer for the respondents.
2. The applicant in this case appeared for competitive examination conducted by
the MPSC for the post of Police Sub Inspector. He belongs to VJ/NT category. It is
the contention of the applicant that in short listing candidates for interview the criteria
of marks in written examination prescribed for VJ/NT was he same as was prescribed
for the general category. Therefore, according to the applicant he was deprived of
selection. The argument of the learned counsel for the applicant runs on the line that if
lower criteria would have been selected in open category vacancies also increasing the
chances of the applicant being selected for the post. It is further contended that the
criteria for short listing of candidates for Scheduled Caste, Scheduled Tribes and Ex-
servicemen was 200,160,160 but in respect of VJ/NT and in respect of general
category it was 215. Thus, the criteria had no nexus to the object of reservation of
seats for these categories. Further it is also mentioned that in the examination held in
earlier years i.e. in 1987, 1989, 1990 and 1991 lower criteria for short listing was
prescribed for VJ/NT as compared to criteria for open category. Hence prayer is that
he should be selected for the post of Police Sub Inspector.
3. The respondents have resisted the application on the following grounds. It is
pointed out that according to Kothari Committee's Report on the recruitment policy
and selection method of Civil Services Examination of the UPSC the number of
candidates to be called for interview on the basis of the marks obtained in the written
examination should not exceed twice the number of vacancies to be filled. The
Supreme Court has also upheld this view. The number of posts advertised for VJ/NT
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category were 28 and 68 candidates were called for interview. After completing all
the formalities not only 28 candidates belonging to VJ/NT category were
recommended in the reserved category but 7 more candidates belonging to VJ/NT also
qualified for open category post. Thus, there is no infirmity in the selection process.
4. At the outset this Tribunal is not competent to sit as an appellate authority over
the mode and manner of selection to be adopted by the MPSC which is a specified
body created by the Constitution. It is well settled that number of applications is large,
the commission is competent to adopt short listing criteria for the purpose of selection
or for the purpose of selection or for the purpose of calling candidates for interview.
The criteria will obviously be based on number vacancies and the marks secured by
the candidates belonging to that particular category, so as to ensure that candidates
ultimately called for interview are within manageable limit. Thus, prima facie there is
no infirmity in applying the criteria on the basis of accepted norms.
5. The contention of the applicant that this deprived the candidates belonging to
the VJ/NT category from competing for the post in open category is inconsistent with
the facts because in fact 7 persons belonging to VJ/NT category were selected in open
category. The argument is also fallacious because at the time of preparation of
common merit list all the persons in the VJ/NT category will be shown in accordance
with the marks and those who fit into reserved category will be selected in the
category and those who were eligible for being selected in open category will
obviously be selected in open category. It is admitted position that the applicant did
not satisfy short listing criteria as he secured 210 marks when Short listing criteria
prescribed 215 marks.
6. A comparison between short listing criteria in various years is not tenable
because short listing criteria will depend upon number of posts and the marks secured
by the candidates in that particular examination. Thus, the argument that in that
particular examination. Thus, the argument that in earlier years lower criteria was
prescribed has no connection with the criteria to be prescribed in the subsequent years.
Besides even when a lower criteria was prescribed, the applicant could not secure
necessary marks so as to eligible for being called for interview in those relevant years.
Thus, the applicant has no case for being selected. It is settled position of law that the
Tribunal cannot direct selection of any person ad it is for the bodies competent to
decide the question of selection.
527
7. In view of the position pointed out in the proceeding paragraphs, we do not see
any reason to grant relief to the applicant. The application is dismissed with no order
as to costs.
***
528
Original Application No.21 of 2001 D.D. 3.5.2002
Hon'ble Mr.Justice Vice-Chairman Shri R.Vasudevan
Hon'ble Member (J) Shri P.K.Gaikwad Shri Nitin Prabhakar Sapke – Applicant Vs. The State of Maharashtra & Anr.
Following procedure of P.S.C. is upheld by the Tribunal The Main Examination has been notified by the Mahashtra P.S.C. and the cutoff date for the educational qualification, age etc., has been prescribed in the notification – As on the cutoff date the applicant was not eligible – He did not possess Degree qualification prescribed – He obtained Degree qualification subsequently – The claim of the applicant was rejected. Cases referred: 1. 1993 Supp (2) SCC 611 Ashok Kumar Sharma Vs. Chandra Shekher 2. W.P.No.4928 of 1998 Bombay High Court (Aurangabad Bench) 3. 2000 S.C. (L&S) 916 Chottu Ram Vs. State of Haryana
O R D E R
Heard Shri. A.V. Bandiwadekar, learned advocate for the applicant and Ms.
Swati Manchekar, learned Presenting Officer for respondents. As the pleadings in this
case were complete the matter was taken up for final hearing and is being disposed off
by this order.
2. The applicant was allowed by Respondent No.2 to appear for the Combine
Preliminary Examination held on 18.12.1999 for three posts, namely Assistant/Sales
Tax Inspector/PSI. He cleared the said examination and appeared for the main
examination on 18.03.2001, which was originally to be held on 07.01.2001 but was
postponed to 18.03.2001. In his application for the main examination he had
specifically stated that he had not passed the Degree examination of a Statutory
University till 20.11.2000. He appeared for the Degree examination held in November
2000 by Yeshwantrao Chavan Maharashtra Open University, Nasik and was declared
to have passed the said exam as per the certificate dated 20.12.2000. The applicant
was asked to appear for the physical test examination held at Aurangabad on
05.11.2001 consequent on his clearing the main examination. He passed the physical
test examination held at Aurangabad on 05.11.2001 consequent on his clearing the
main examination. He passed the physical test and was called for interview by
respondent submitted a application in prescribed form on 20.10.2001 and 06.12.2001
in which he specifically referred to the fact that he has passed the Degree examination.
529
However, when he went for the interview he was denied entry on the ground that he
had not obtained Degree qualification on or before 20.11.2000.
3. The applicant contends that fixing the cut-off date as 20.11.2000 to determine
eligibility of the candidate who appeared for the examination is illegal, mala fide and
arbitrary since in the examination held during the earlier years the Respondent No.2
fixed the cut-off date as being the date on which the main examination is held. In
other words, according to the applicant no such date prior to the exact date on which
the main examination was held was ever fixed by Respondent No.2 as the cut-off date.
In this connection, he has annexed the notification dated 06.03.1996 for the
examination held for the same post in which the date of main examination is
mentioned as being 07.04.1996 and the same date namely 07.04.1996 is mentioned as
the cut-off date for Degree qualification. The applicant further contends that the date
of the main examination which was earlier fixed as 07.01.2001 was later postponed to
08.03.2001 and earlier when the examination which was due to be held on 07.01.2001
the Respondent No.2 has fixed 20.11.2000 as being the cut-off date and therefore
Respondent No.2 was obliged to postpone the cut-off date of 18.03.2001 as was done
in respect of the examination of 1996. The actual date of the last paper in the Degree
examination held by Yeshwantrao Chavan Maharashtra Open University was
07.11.2000 that is prior to 20.11.2000, which is the cut-off date for obtaining Degree
qualification and therefore, the applicant argued that even if the result of the said
examination were declared on 20.12.2000 it should be held for all purposes that the
applicant has passed the Degree examination 07.11.2000 when he appeared for the last
paper. The learned advocate for the applicant stressed that the applicant was to appear
for the main examination followed by physical test ad therefore, it is clear that fixing
the cut-off date as being 20.11.2000 was not considered by Respondent No. 2 as rigid
but inflexible. He relied on the judgment of the Apex Court in support of his
argument that the date of interview namely 10.12.2001 should be considered as the
cut-off date for the purpose of determining the eligibility of the candidates. He further
argued that the entire objective of Respondent No.2 in holding the competitive
examination should be to see that no candidate who is ineligible in respect of either
Degree or otherwise is allowed to appear for the main examination and in the case of
the applicant this object stands fulfilled. In the light of this, the applicant seeks relief
in the form of direction to Respondent No. 2 to allow the applicant to appear for the
interview test and to grant to him all consequential benefits, by holding that the
fixation of cut-off date namely 20.11.2000 for the purpose of determining the
eligibility of the candidates for the post of Assistant/STI/PSI 1999 as illegal, malafide
and arbitrary. He also seeks directions in the forms of declaration that the applicant is
530
eligible to appear for the competitive examination as he appeared for the last paper of
Degree examination on 07.11.2000, which is prior to the cut-off date namely
20.11.2000.
4. The Respondents have contested the claim of the applicant by filling affidavit-
in-reply. In the said affidavit they have averred that an advertisement was published
on 14.07.1999 for the post of Assistant STI/PSI for the preliminary examination 1999.
The examination was held on 18.06.2000, the result of which was declared on
02.11.2000. The applicant was not found qualified as per his merit rank. Accordingly
a notification regarding the main examination was published on 30.10.2000. The main
examination was due to be held on 07.01.2001. However, there were several
representations from candidates that there were printing mistakes in the question
papers of preliminary examination. On consideration of these representations, the
Commission decided to allow all the candidates who appeared for the preliminary
examination to take the main examination subject to the verification of their eligibility
in terms of age, educational qualification etc at any stage of the examination.
According to the Respondents, eligibility of the candidates is usually verified from the
application submitted by the candidates before they appear for the main examination.
However, in this case as all the candidates were admitted to the main examination
subject to the verification of eligibility to avoid delay, the candidates were asked to
submit their applications at the time of interview and therefore, it was not possible to
scrutinize their eligibility before calling them for interview. The Learned Presenting
Officer relied upon Scheduled 1(2) (A) of he notification wherein it has been stated
that the candidates who had acquired their educational qualification, that is, Degree on
or before 20.11.2000 will only by held eligible for the main examination. She argued
that as per the Commissions instructions to candidates it was made clear that the
eligibility of the candidates will be verified at any stage of the examination and the
candidature of non-eligible candidates will be cancelled at any stage of the
examination and accordingly at the time of interview the claims regarding educational
qualifications were verified. It was found at the time of interview that the applicant
has acquired his Degree from the Yeshwantrao Chavan Open University on
20.12.2000, that is after due date. Referring to the judgment of this Tribunal in O.A
382/1998 filed by Shri. S.K. Burud, she argued that this Tribunal has held that the
Commission has to decide eligibility of the candidates only with reference eligibility
of the candidates only with reference to the last date. She also referred to the fact in
Ashok Kumar Sharma Vs. Chander Shekher 1993 Supp(2) SCC 611, the Supreme
Court has reversed its earlier decision in 1997 in Ashok Kumar Sharma Vs. Chandra
Shekher 1997(4) SCC 18 and thus taking this into consideration this Tribunal has
531
dismissed the Original Application 382/1998 on merit. Reacting to this, the learned
advocate for the applicant argued that the said judgment of the Supreme Court is not
applicable to the present facts of the case and in the OA No. 382/1998 the issue was
cut-off date regarding experience as qualification and not the educational qualification.
He also tried to distinguish the case decided by the Supreme Court on the ground that
in that case the candidate had acquired educational qualification after the main
examination, but before the interview, whereas in the present case the applicant has
acquired the educational qualification before the main examination.
5. It is not under dispute that the on the cut-off date prescribed in the notification
regarding main examination which was published on 30th October 2000 it was clearly
mentioned that only those candidates who had acquired their Degree on or before 20th
November 2000 will be held eligible for the main examination, for is it under dispute
that the applicant had acquired his Degree on 20th December 2000, that is, after the
due date mentioned in the notification. The argument by the learned Counsel for the
applicant that the date of main examination should have been fixed as the cut-off date
as was done in the previous examinations. He also argued that as the date of
examination was postponed, the cut-off date should also have been postponed. Both
these arguments do not stand close scrutiny. In writ petition No. 4928 of 1998 decide
by the Aurangabad Bench of the Bombay High Court it was contended that as the date
for submitting the application form for handicapped persons was extended till 30th
November 1998 the cut-off date for eligibility should be taken into consideration as
30th November 1998 and not the date prescribed in the advertisement. This contention
was rejected and the High Court observed as follows.
" In our view, this submission is required to be rejected, mainly on the ground that on the date prescribed in the advertisement, cannot be permitted to apply for the post on the ground that the procedure prescribed for holding the interview or the examination is delayed because of stay orders. Further, a fresh cut off date cannot be prescribed by this Court. The date prescribed in the advertisement as the cut-off date is required to be taken into consideration for finding out whether the candidate was eligible to be considered for the appointment on the relevant date. If he was not eligible, then there is no question of considering him for the said post. In any case, the delay in holding the examination or the interview, because of the stay orders granted by the Courts would hardly be a ground for re-advertisement, or extending the cut off date prescribed in the advertisement, so as to make other persons, who have obtained the prescribed qualifications after the said date, eligible."
532
In the absence of any rule regarding the fixing of cut-off date, it is open to the
MPSC to fix such date taking into consideration the prevailing circumstances at the
time. It cannot be said that only the date on which the main examination is held
should be prescribed as the cut-off date just because it was done in 1996. Further, the
mere fact that the main examination was postponed cannot be a ground for postponing
the cut-off date interview of the above observations of the Bombay High Court. The
crucial date is the date prescribed in the advertisement. In Ashok Kumar Sharma Vs.
Chander Shekhar (1997) 4 SCC 18, the Apex Court observed as follows.
"Where applications are called for prescribing a
particular date as the last date for filling the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such a representation. It cannot act contrary to it. The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, an impermissible justification. The minority opinion in the 1993decision in Ashok Kumar Sharma's case 1993 Supp (2) SCC 611 that the 33 respondents, who were not qualified on the date of submission of the application but had acquired the requisite qualification before the date of interview, could not have been allowed to appear for interview was right".
6. In view of these observations the reliance placed by the applicant's learned
advocate on the earlier judgment of the Apex Court is of no relevance. The case cited
by him Chottu Ram Vs. State of Haryana 2000 SCC (L&S) 916 is also of no help. In
that case the cut-off date had been prescribed under the Rules and it was held that in a
situation where a person takes an exam before cut-off date and the result is declared
after the cut-off date, the person must be considered to be eligible with reference to the
date of the examination if the examination had been conducted before the cut-off date.
In that case, however, the Supreme Court was dealing with the case where an officer
already working in PWD had appeared for AMIE and a clarification had been issued
about the cut-off date prescribed in the rules. In the present case, the main
examination has been notified by the MPSC and the cut-off date has been prescribed
by the notification. We therefore, hold that the ratio in the case of Ashok Kumar
Sharm cited alove will be applicable in this case, rejecting the argument of the learned
advocate for the applicant that the said case is distinguishable. A on the cut-off date
prescribed, the applicant was not eligible, his claim deserves to be rejected. The
533
circular dated 02.12.1980 relied on by the learned advocate for the applicant is not
relevant for this case. The circumstances under which the applicant eligibility would
not be verified at the time of his admission in the main examination have been
adequately explained by the respondents.
7. In the light of the above, the applicant deserves to be rejected. We,
accordingly, reject the application. No orders as to costs.
***
534
MANIPUR PUBLIC SERVICE COMMISSON
535
GAUHATI HIGH COURT IMPHAL BENCH
W.P.Nos. 1061 of 2000 & 1122/2000 D.D. 26.9.2000
The Hon'ble Mr. Justice W.A. Shishak
Oinam Radheshyam & Anr. – Petitioners –vs- Manipur P.S.C. & Anr. - Respondents
Irregularities in evaluation of answer scripts of4 subjects – Fresh valuation of the said answer scripts ordered in respect of all the successful candidates
Irregularities in evaluation of answer scripts in the combined competitive examination for recruitment to Manipur Civil Service/Manipur Police Service held as per notification dated 17.11.97 – High Court has found that answer scripts of 4 candidates who were not made parties in the writ petition were not properly valued and hence disqualified them – But held valuation of answer scripts of petitioners and other successful candidates proper and disposed of the writ petitions accordingly. In Writ Appeal No.132/2000 and connected cases, the Division Bench has set aside the order of the Single Judge disqualifying 4 candidates who were not parties to the writ petitions on the ground of violation of principles of natural justice and directed fresh valuation of answer scripts of 4 subjects in which irregularities were alleged by a new set of Examiners in respect of all the 100 successful candidates. (DD. 29.11.2001) SLP Nos.5302-5306/02 filed against the judgment of the Division Bench have been dismissed (D.D. 25.11.2002)
JUDGMENT
The subject matter in the above writ petitions concern the results of written
examination of the combined competitive examination for recruitment to the Manipur
Civil Service/Manipur Police Service vide Commission's Advertisement No.6/97-98
dated 17th November, 1997.
2. The results of the written were notified on 31st July, 2000. in the said written
examinations, 55 candidates from general category, 35 candidates from Scheduled
Tribe and 10 candidates from Scheduled Caste were qualified. The Roll Nos. of the
successful candidates were printed in the Notification. However, they were not in
order of merit.
3. By another order issued on the same day i.e. 31st July, 2000, the program of
interview for recruitment to the post of 9(nine) Manipur Civil Service and 11(eleven)
Manipur Police Service was notified. The Schedule of the personality test/viva voce
was from 16.08.2000 to 26.08.2000.
536
4. On 22.08.2000 this court had passed the following interim order:-
"The respondents shall complete personality test/viva-voce as scheduled. However, results shall be kept secret and no final recommendation shall be made until further orders."
Hence though personality test/viva voce has been completed, final results are yet to be
published.
5. In writ petition W.P. (C) 1061/2000, the petitioners are seeking a direction to
quash the written test results. It may be stated that the petitioners were successful in
the written test held in the year, 1994 and in fact it is claimed that the petitioner No.1
topped the list of successful candidates held in 1994. However after a very prolonged
legal battle including Commission of Inquiry constituted as regards the conduct of the
said test in 1994, the entire exercise of the examination held in 1004 same to be
cancelled. The present case relates to the subsequent examination conducted by the
Manipur Public Service Commission as per direction issued by this Court.
6. Mr. Ashok Potsangbam, learned Counsel appears for the petitioners.
Mr.H.N.K.Singh, learned Senior Counsel represents the Manipur Public Service
Commission. It is submitted by Mr. Ashok Potsangbam that in respect of some
successful candidates marks have been increased by Head Examiner or by the same
subject expert acting himself as Head Examiner. Mr. H.N.Ksingh on the other hand
submits that no irregularity whatsoever has been committed in the conduct of the
examination and particularly in the matter of evaluation of marks of the successful
candidates. According to Mr. H.N.K.Singh, apart from the subject expert i.e. he first
examiner, there is also one Head Examiner in each subject.
7. I have spent much time in trying to understand the grievances of the writ
petitioners and also the scope for this court to interfere in the matter. I am of the view
that this court can only examine the specific allegation made in the writ petition. It
reads:-
" That, the petitioners have learnt from reliable sources that in case of 4(four) subjects viz. Mathematics, English, Sociology and Political Science, marks have been increased by a huge margin at the third stage mentioned above and that too, by the same evaluator/examiner of the first stage. The marks so increased have resulted to the inclusion of some candidates in the successful list and also to the exclusion of the petitioners from the successful list. The particulars of some of the successful candidates benefited by such increased can be furnished by the petitioners in the sealed cover if so directed by the Hon'ble Court. Further, in the case of the petitioner No.1 who got first position in the last 1994 written test examination, his marks in Economics Paper I and II have been drastically reduced at the third stage.
537
The increase of marks made at the third stage was not initially authenticated but the same is learnt to have now been authenticated at the instance of the MPSC. Thus, the answer scripts and the particulars which may be submitted in sealed cover may be requisitioned by the Hon'ble Court for examination and further necessary orders."
In the recently held examination the petitioners were not found successful.
8. As directed by this court on 14.08.2000, answer scripts in respect of 12
(twelve) candidates were submitted in sealed cover. Subsequently answer scripts of
Economics paper-I and II in respect of the writ petitioner No.1 were also submitted in
sealed cover. It may also be stated that answer scripts of Economics Paper-I and II in
respect of W.P. (C) 1122/2000 i.e. in respect of the petitioner Jogeshchandra
Haobijam were also submitted in sealed packet on 12.09.2000. I have seen all the
concerned answer scripts relating to the subjects in respect of which grievance has
been taken by the parties.
9. First let me deal with the answer scripts of the petitioner No.1 in W.P. (C)
1061/2000 Shri O.Radheshyam Singh bearing Roll No.3541, code No.709. It is not
the duty of this court to evaluate or to assess the qualify of the answer of the answer
scripts. I have, however, looked at every page of the 2(two) Economics Papers-1 and
2 and the marks scored by the petitioner as recorded by the examiner. In my view
there is no material for this court to question the action in the evaluation/examination
and marking of the examiner in both the papers. In other words, there is no material
for me to find fault in the evaluation and making of the 2(two) papers concerning the
writ petitioner No.1. I may state that in fact the petitioner No.1 seems to have done
well in these 2(two) papers.
10. Let me come to the answer scripts of mathematics Paper-1 and 2 in respect of
one Ch.Deepak Singh, Roll No.331. In Mathematics Paper-I, in the total first the
figure 140 is written. That figure is crossed out and another figure 290 is written and
that is also crossed out and figure 185 is written and that too is crossed out and another
figure 225 is written. Figure 225 is also crossed out and at least figure 225 is stated to
be the total marks scored by this candidate. One small slip is attached to the answer
scripts with the signature of the examiner giving some reasons as to how corrections
had to be made. I have simply looked at every page of the answer scripts. Though
some reason is assigned to the corrections made against each answer, on the whole,
after seeing too many crossing out and corrections by the examiner, it appears to me
that the answer scripts does not appear to have been handled by a grown up person.
538
The whole thing looks childish and muddy. It is extremely difficult to say that a good
job has been done, in such a situation. In respect of Mathematics Paper-2 also similar
reason is given for the corrections/additions made in the earlier marks already entered
by the examiner himself while totaling in the front sheet. The total recorded is 155
and 50 is added making it 205. However, the figure 50 though initially written in red
ink has been crossed with blue ink so also the figure 205 has been crossed out with
blue ink. At last the total is 195. It is initialled. On the whole such work can not at all
inspire confidence of any man of ordinary prudence. In the result this candidate
should be declared disqualified.
11. Let me now record my opinion concerning one N.Herojit Meitei, Roll No.2126
in respect of Mathematics Papers-1 and 2. First let me state that several corrections
have been found in Mathematics Paper-1, though a slip has been attached to the
answer scripts signed by the examiner giving some reasons for the corrections. First
total is recorded as 147 which is crossed out and replaced by the figure 190 which also
is crossed out and replaced by the figure 200 which again has been crossed out and the
last figure which is the total in the present case is 210. In respect of Mathematics
Paper-2 also a correction slip is attached and signed by the examiner. There are
several corrections. Total is first recorded as 130. Though the said figure 130 is not
crossed out, another figure 30 is added and the figure comes to 160. The figure 160 is
crossed out is replaced by figure 165. The figure 30 also crossed out and the figure 25
is written making the total as 150 after crossing out the figure 165. At last the figure
which is rounded up both blue ink is 150. I am a layman. I look into the entire matter
in simple manner. I cannot say that the work has been done in a reasonable manner.
Any one who sees such answer scripts will say, it is very badly handled. This
candidate should also disqualified.
12. Let me now record my opinion about E. Hemanta, Roll No.3161. In respect of
English Literature Paper-2 I find no correction in the marks entered in the first page of
the answer scripts by the examiner. The total is 211. It remains unchanged. It should
be accepted as it is. However, in respect of English Literature Paper-I, I notice
something very strange. The total is recorded as 155. Thereafter some figure was
recorded but it is not legible and the same has been crossed out. Then another figure is
also recorded but that also has been crossed out and it is founded up as 155 again,
though the earlier figure is not crossed out. The strange thing is that in this particular
paper all the marks entered by the examiner has been crossed out, not one figure
remains as it was initially entered. There are as many as 6(six) entries viz., 35, 22, 15,
9, 6 and 22. All the 6 figures against 6 columns have been crossed out and have been
539
completely replaced by firstly the figures 39, 25, 20, 11, 11 and 13. Again the figure
39 has become 40, 25has been crossed out and made 30.
It appears the first total which remains recorded as 155 is not correct. It should
be 109 in terms of the entries made which of course were subsequently crossed out.
No correction slip is also attached in the present case. It is curious to note that the first
total remains as 155 is correctly, allowing another total 155 which is correct, but only
after crossing out all the earlier entries by replacing them with some other figures. I
can not allow this kind of system of examination in our state. This is totally non-
acceptable. Therefore this candidate shall also stand disqualified.
13. Let me now record my opinion about one R.K.Manbindu, Roll No.2637 in
respect of Mathematics Papers-1 and 2. In Mathematics Paper-1, it appears the first
total was 118. However, the middle figure has been turned into 2. Hence the total is
128. In question No.7 pages 21-27, Book No.3 and 4 the marks entered are 20+0+5-
15=35. The marks entered in question No.1 pages 1-6, Book No.1 are 20+20+15=55.
Marks entered in question No.2 pages 8-1, Book-1 are 0+0+0+15=15. Here I noticed
that the first "zero" was earlier a figure which looks like '2' but that has been over
written as '0'. In question 5, pages 15-20, Book Nos.2 and 3, marks entered are
8+5+15+0=23. The rest are all zeroes. As I have stated above in question No.7
though the figures 20+0+5-15=35 are entered it also appears that the figure '5' seems
to have been crossed out though it is seen faintly. I may also state that earlier the total
marks recorded in question No.7 was 30. However, '0' has been over written as '5'.
Hence it is now 35. Such re-writing or over writing has nowhere been initialled,
though some slip has been attached. As regards Mathematics Paper-2, it is noticed
that total was first recorded a 165. However, figure '50' is again added and the total
has now become 215. Against the initial entries or marks allotted '5' has been added to
'15', another '5' has been added to '15', another '5' has again been added to '15' and the
4th time another '5' has been added to '15' and in all these 4(four) figures of '15', '4'
figures of '5' have been added and in each the total is 20. In another entry of 10 marks
another figure '10' has been added making the total '20'. Similarly the figure '10' has
been added to the figure '10' which was initially entered and the total is '20'. The total
of each figure is written in blue ink whereas the additions are written in red ink. In my
simple and naked eye it appears there is a difference of ink though both the initial
entries and the subsequent entries are made in red ink. In this also scrutiny slip has
been attached. I may also state that the additions and the totaling of the various marks
have nowhere been intialled. In my view both the Mathematics Papers referred to
540
above as regards this candidate have been badly handled. This candidate shall stand
disqualified.
14. In W.P. (C) No.1122/2000 the writ petitioner is a successful candidate. He
was selected in the written test and he was called for interview and he has also faced
the personality test/viva voce. Though at the instance of the writ petitioner economics
papers of the writ petitioner have been produced in sealed cover by the Commission as
a grievance has been taken by the writ petitioner that there is unauthorized reduction
in marks initially allotted by the Examiner and such reduction may affect in the final
result of the writ petitioner. Since the writ petitioner has already been selected in the
written test and since he has also faced the interview, in my view no useful purpose
will be served for this court to look at the answer script and give comments at this
stage. It is not possible for this court to entertain each and every complaint: in every
aspect. In my view a successful candidate like this writ petitioner cannot be heard to
question the system of Examination. Therefore, the question raised by the writ
petitioner as regards the system of evaluation of marks followed by the Commission in
the present case need not be answered.
15. In an affidavit in reply filed on behalf of the petitioners in writ petition
No.1061/2000 a question as regards the system of evaluation followed by the
Commission in the present case has been raised. In other words, the petitioners have
asserted that the system of examination as laid down and followed in Civil Services
Examination of the Central Government should be followed in the conduct of
examinations of Manipur Public Service Commission. The system followed in the
present case has been explained by the Chairman of the Commission in an affidavit
filed in the present case. It has been stated in para 14 of the counter affidavit that
"there is no question of appointing third person solely with the job of moderation for
any subject, since the job of moderation for any subject, since the job of the head
examiner/scrutiniser includes not only scrutiny, but also moderation in order to make
the competitive examination as doubly sure to maintain transparent quality in selection
to the highly important posts of service hierarchy of the Government of Manipur." It
is averred in para 16 of the counter affidavit as follows:-
"That the system of written test examination under MPSC is guided by the conventional system of answer script examination by subject experts and head examiners selected from time to time from among the senior subject experts/teachers of Government Colleges and University and the head examiners are instructed or otherwise entrusted with the job of scrutiny and checking the answer scripts examined by the examiners before tabulation, decodation and publication of the results thereof."
541
Though arguments have been advanced on behalf of the writ petitioners
contesting the types of system of examination with particular reference of evaluation
of answer scripts, I am of the view that in the facts and circumstances of the present
case and also by taking into consideration the background as to how the Manipur
Public Service Commission has not been able to conduct examination for a very long
time, it would be fair and reasonable to accept the system of examination chosen by
the Commission for the purpose of the case at hand. As I hold this view I have not felt
it necessary to discuss the case laws cited by the parties as regards the system of
examination.
16. In the premises aforesaid W.P. (C) No.1061/2000 is disposed of as follows:-
In the event of selection and recommendation of the 4 (four) candidates who have
been disqualified in view of the reasons I have stated above, their names shall not
be recommended and they shall stand disqualified. No such action is necessary if
they have not been recommended.
W.P. (C) No.1122/2000 is dismissed as indicated above.
Interim order stands vacated.
In the facts and Circumstances parties are directed to bear their own costs.
***
542
Writ Appeal No.132 of 2000 & connected cases D.D. 29.11.2001
The Hon'ble Mr. Justice B.B.Deb The Hon'ble Mr. Justice B.Lamare
R.K.Manbindu Singh & Others - Appellants Vs. Oinam Radheshyam Singh & Ors. - Respondents
JUDGEMENT
Two writ petitions bearing Nos.W.P.(C)1061 of 2000 and W.P.(C)No. 1122 of
2000 have been filed. Shri Oinam Radhesyam and Shri Jagajit Salam are the
petitioners of W.P.(C) No.1061 of 2000. Their grievance was that the written
examination conducted by the Manipur Public Service Commission (in short MPSC)
pursuant to its Advertisement No.6/97-98 dated 17th November, 1997 for recruitment
to the posts of Manipur Civil Services Grade-II (in short MCS) and Manipur Police
Services Grade-II (in short MPS) had been actuated by manipulation, favouritism and
other odds and as such the said petitioners having filed the aforequoted writ petitions
sought for declaration that the result of the written test of the aforesaid examination be
quashed.
The second writ petition bearing No.W.P.(C)1122 of 2000 has been filed by
Shri Jogeshchandra Haobijam who has been declared successful in the written
examination. In his writ petition, the petitioner sought for re-evaluation of two papers
of economics.
The petitioners of both the cases did not care to implead all the candidates who
successfully completed the written test.
After hearing the parties and on examination of some answer scripts as
mentioned by the petitioners, the learned Single Judge passed impugned order having
disqualified four candidates who completed the written examination successfully
though they were not made party in the writ petitions. Those four candidates preferred
separate writ appeals bearing Nos.Writ Appeal 132/2000, Writ Appeal 133/2000, Writ
Appeal 134/2000 and Writ Appeal 135/2000. The writ petitioner of W.P.(C)No.1061
of 2000 also preferred writ appeal bearing No.146/2000 seeking for re-evaluation of
the answer scripts of all the candidates. The petitioner of W.P.(C)No.1122/2000 also
preferred Writ Appeal bearing No.156/2000 seeking quashment of the judgement
passed by the learned Single Judge and also for re-evaluation of answer scripts of
Economics Paper-I and Paper-II.
543
2. Heard the learned counsel for the parties. Perused the impugned judgment.
Also taken into consideration the averments made by the writ petitioners in the
original writ petitions.
3. From the writ petition bearing No.W.P.(C)1061 of 2000, it appears that the
petitioners in the writ petition made allegation that in making evaluation of the answer
scripts of Mathematics, English, Sociology and Political Science, marks have been
increased/decreased in a manipulated manner. For convenience sake, para 8 of the writ
petition is re-produced below:-
8. That, the petitioners have learnt from reliable sources that in case of 4(four) subjects viz. Mathematics, English, Sociology and Political Science, marks have been increased by a huge margin at the third stage mentioned above and that too, by the same evaluator/examiner of the first stage. The marks so increased have resulted to the inclusion of some candidates in the successful list and also to the exclusion of the petitioners from the successful list. The particulars of some of the successful candidates benefited by such increase can be furnished by the petitioners in the sealed cover if so directed by the Hon'ble Court. Further, in the case of the petitioner No.1 who get first position in the last 1994 written test examination, his marks in Economics Paper 1 and 2 have been drastically reduced at the third stage. The increase of marks made at the third stage was not initially authenticated but the same is learnt to have now been authenticated at the instance of the MPSC. Thus, the answer scripts and the particulars which may be submitted in sealed cover may be requisitioned by the Hon'ble Court for examination and further necessary orders."
4. The learned Single Judge called for as many as 13 answer scripts as suggested
by the writ petitioners and on perusal of the answer scripts, cast doubt as to the
genuineness of evaluation of aforesaid four papers. The learned Single Judge was of
the opinion that the marks had been shown increased/decreased in a manner not at all
acceptable to any reasonable prudent man. So far the Economics papers are
concerned, on perusal of the answer scripts, learned Single Judge found no fault in
them.
5. Mr.N.Ibotombi Singh, learned Counsel appearing on behalf of the appellants in
Writ Appeal No.146/2000 submits that appellants, petitioners in connected Writ
Petition No.W.P.(C)1061/2000 had grievance regarding the result of Economics
papers also.
544
6. On perusal of the Writ Petition (W.P.(C)No.1061/2000), it appears that the
petitioners therein among others sought for the following relief:-
"v) to issue a direction requisitioning the answer scripts of the selected
candidates in respect of 4(four) subjects i.e. Mathematics, English,
Sociology and Political Science (particulars in sealed cover) and examine
the same by the Hon'ble Court."
7. On perusal of the impugned judgement and having heard the learned counsel
for the parties, it reveals that unless the matter is resolved within shortest possible
time, the administration would suffer because of the fact that the Government
machinery is to be run by the hypeaucratic officials and the Government placed
requisition to the KPSC for recommending candidates for filling up as many as 9(nine)
posts of MCS Grade-II and 11(eleven) posts of MHS Grade-II. Due to pendency of
the litigations those posts could not be fill up.
8. The MPSC having conducted the written examination published the list of as
many as 100 candidates being successfully completed the written examination.
Pending the writ petition, viva voce test has also been completed with the leave of the
court though final panel has not yet been published.
9. From the afore narrated circumstances, we are of the confirmed opinion that
the answer scripts of the afore quoted four subjects viz. Mathematics, English,
Sociology and Political Science of all the hundred successful candidates and the two
writ petitioners namely, Shri Oinam Radhesyam and Shri Jagajit Salam (Appellants in
Writ Appeal No.146/2000) are required to be evaluated afresh by a complete setoff
new examines. The examiners entrusted for evaluation in the earlier process must be
kept a
10. In that view of the matter, the MPSC is directed to arrange for fresh evaluation
of the answer scripts of the aforementioned four subjects viz. Mathematics, English,
Sociology and Political Science of all the hundred successful candidates and the two
petitioners of Writ Petition No.1061 of 2000, namely, Shri Oinam Radhesyam and
Shri Jagajit Salam by a new set of examiners and the whole exercise must be
completed within a period of 3 (three) months. However, on exceptional compelling
reason, MPSC may seek for extension of time before this court.
11. It is made clear that in case it is found that any of the appellants in Writ Appeal
No.146/2000 or both of them, namely, Shri Oinam Radhesyam and Shri Jagajit Salam
545
is/are found to be qualified on fresh evaluation, he or they may be called for viva-voce
test. The result of viva-voce test already taken be kept in sealed cover and be opened
on completion of the entire process. On the basis of fresh evaluation, a merit list of
written examination is to be finalized afresh.
12. The decision of the learned Single Judge by which the candidates, namely, Shri
R.K.Manbindu Singh (appellant in WA No.132/2000), Shri Ningthoujam Herojit
Meitei (Appellant in WA No.133/2000), Shri Chabungbam Deepak Singh (appellant
in WA No.134/2000) and Shri Elanobam Hemanta Singh (Appellant in WA
No.135/2000) were declared disqualified, is hereby quashed as the said
disqualification was recorded by the learned Single Judge without hearing those
candidates
13. With the aforesaid decisions and directions, all the writ appeals are disposed of
accordingly.
***
546
MIZORAM PUBLIC SERVICE COMMISSION
547
GAUHATI HIGH COURT AIZAWL BENCH
W.P. (C) No.10 of 1996 D.D. 25.4.2000
The Hon'ble Mr. Justice D.Biswas
Sanghnuna Royte – Petitioner -Vs- The State of Mizoram & Ors. – Respondents Selection by P.S.C. for promotion on the basis of A.C.Rs Grievance of the petitioner is that private respondents who were junior to him in the grade of Inspector of Police were promoted to junior grade of Mizoram Police Service (M.P.S.) on the recommendation of P.S.C. by making erroneous assessment. High Court found that there was gross deviation in the process of assessment – Hence directed P.S.C. to re-assess the A.C.Rs applying the same yard stick.
JUDGMENT & ORDER (ORAL)
Heard Mr. Lalramzauva, learned counsel for the petitioner and Mr.Vaiphei.,
Learned assistant Advocate General for the respondent State.
2. This petition has been filed by the petitioner for quashing the orders of
promotion of the private respondents who were junior to him in the grade of Inspector
of Police and to promote him to the Junior grade of Mizoram Police service (MPS)
with retrospective effect and to protect his seniority and other service conditions. The
petitioner along with the private respondents were appointed by a common order
No.89 of 1973 as sub- Inspector of Police in the year also 1973. The Final inter-se-
seniority published on 14.7.1981 also reflects the correct position of his seniority
wherefrom it is evident that he was senior to all the private respondents. Therefore in
the year 1984, the petitioner was promoted to the post of Inspector along with private
respondent no.5 and 6. Private respondent Nos. 7 to 10 were promoted in the year
1986 and 1987. The common seniority list in the grade of Inspector was also
published on 21st February, 1994 wherein petitioner's name has been shown at
Sl.No.6. Respondent No.2 viz the Commissioner of Home, Mizoram forwarded the
names of 20 (twenty) Inspectors in order of seniority to the Mizoram Public Service
Commission (MPSC) for selection of 8 (eight) officers for appointment in the Junior
grade of Mizoram Police service. Although the petitioner was senior to the private
respondents, the Mizoram Public Service Commission by adopting an erroneous
method of assessment of merit placed the petitioner below his juniors. This erroneous
548
decision has resulted in delay in promotion of the writ petitioner. Eventually, by a
notification issued on 14th July, 1998, the petitioner was promoted to the Junior grade
of Mizoram Public Service while his juniors were promoted to the same grade long
before. Being aggrieved thereby, he has preferred this petition for the reliefs already
indicated here-in-before.
3. Mr Vaiphei, the learned assistant Advocate General has produced the final
records containing the remarks (of the writ petitioner and other private respondents)
given in their A.C.Ps for 5 years preceeding the date of selection. Mr. Lalramzauva,
learned counsel for the petitioner pointed out that while making assessment and
allotting marks for gradings in the ACR, discrimination has been made between the
candidates. To bring home the point he has referred to a statement prepared by the
Mizoram Public Service Commission wherefrom it appears that while the writ
petitioner has been given 8 (eight) marks for his rating as "above average", private
respondent No6, Shri thansanga for the same rating was given 9(marks). Similar is the
position with regard to Shri Vanlalzuata (Respondent No 5). BothSshri Thansanga and
Shri Vanlalzuata were junior to the writ petitioner as per inter-se-seniority list
published by the department. This shows that different criteria have been applied
while assessment was made by the Mizoram Public Service Commission. This
erroneous method adopted by the Mizoram Public Service Commission is obviously
discriminatory and has resulted in gross injustice to the writ petitioner, consequently,
the writ petitioner became junior to the private respondents in the next higher grade.
A comparison of the marks sheets prepared by the Mizoram Public Service
Commission with reference to the ratings in the ACRs indicate that there has been
gross deviation in the process of assessment and thus the writ petitioner has been
deprived of his due position in the promotion panel. Although the writ petitioner has
been promoted subsequently in the year 1998, yet the delayed promotion has made
him junior to his erstwhile juniors in the grade of Inspector of Police for which the
petitioner is likely to suffer perennial loss in the coming years. In view of what is
apparent on the fact of record, this court is left with no alternative but to conclude that
the promotion panel is violative of all service norms and the principles of natural
justice. The petitioner has definitely a cause to vindicate. In my opinion, the injury
caused can be corrected by directing the Mizoram Public Service Commission to re-
assess the merit to the petitioner applying the same yardstick and principle as has been
applied in case of the private respondent Nos. 5,6 and 9 and, thereafter to recast his
position in the promotion panel in accordance with his merit. After such assessment,
the recommendation shall be forwarded to the appropriate authority for issue of
necessary orders for promotion of the writ petitioner retrospectively, that is, with
549
effect from the date when his next junior in the promotion panel was promoted. The
promotion to be given retrospectively shall be notional for the purpose of seniority
only, while undertaking re-assessment as observed above the Mizoram Public Service
Commission shall ensure that no anomalies remain in the promotion panel with regard
to the officers already promoted.
4. The Mizoram Public Service Commission is directed undertake and complete
the process of re-assessment within a period of three Months from today. The writ
petition is allowed to the extent as indicated above.
No order as to costs.
***
550
W.P.(C) No.125 of 2000 D.D. 27.7.2001
The Hon'ble Mr. Justice B.Lamare Shri. L.R.Colney – Petitioner -vs- The State of Mizoram & Ors. – Respondents Selection by P.S.C. for promotion on assessment of A.C.Rs Held – 'Average' entry in the A.C.R. is not considered as adverse remark. Petitioner and Respondent No.5 who were Assistant Auditors were considered for promotion to the post of Auditor. In the seniority list the petitioner was senior to Respondent No.5 – 5 years A.C.Rs were considered – In 4 years A.C.Rs petitioner was graded as 'Good' but in the last A.C.R. graded as 'Average' as such his junior Respondent No.5 was selected and appointed as Auditor on recommendation of P.S.C. – Petitioner challenged the same stating that 'Average' entry being adverse it ought to have communicated to him and as the same was not communicated it should not be considered. High Court in view of the letter dated 24.8.2000 of the State Government informing the petitioner that 'Average' entry is not adverse remark, upheld the selection and promotion and dismissed the writ petition. Case referred: (1996) 2 SCC 363 U.P. Jal Nigam and others v. Prabhat Chandra Jain and others
JUDGMENT
Heard Mr. C. Lalramzauva, learned counsel for the petititioner, Mr. H. Sailo,
learned Govt. Advocate for respondent Nos. 1, 2 & 3 and Mr. Lalsawta for respondent
No. 4.
2. The case in brief is that the petitioner is working as Assistant Auditor in the
Office of Directorate of Accounts and Treasuries, Govt. of Mizoram. According to the
final interse-seniority list published Vide notification dated 29.6.2000, the petitioner’s
name shown at Sl. No. 1 and Respondent no. 5 as shown at Sl. No. 2 of the said
seniority list. The post in which the petitioner and respondent No. 5 are holding is
Group ‘B’ post are Non-Gazette post. However, the post was up graded to the Gazette
status in a Group ‘B’ post by notification dated 16.8.1999
3. The post of an Auditor fell vacant due to the deputation of one incumbent in
the cadre. The petitioner who is at Sl. No. 1 of the Seniority list claims for promotion
to the said post of auditor. Since the post of auditor is a Gazette post selection has to
be made through the Mizoram Public Service Commission (MPSC). Accordingly, the
case of the petitioners along with along eligible candidates were send to the Mizoram
551
Public Service Commission for consideration. The MPSC after making assessment of
the ACRs of the Assistant Auditor in the zone of consideration has recommended the
name of respondent No. 5 for appointment to the post of auditor. On the basis of the
said recommendation dated 25th May 2000 (Annexure – IX to the Writ Petition) the
Joint Secretary to the Govt of Mizoram, Finance Department (E) vide notification
dated 7.6.2000 appointed respondent No. 5 as Auditor in officiating capacity. It is the
said mentioned recommendation dated 25th May 2000 and Notification dated 7.6.2000
(annexure – IX & X to the writ petition) which are assailed by the petitioner in this
instant petition.
4. Heard learned counsel for the parties and perused regards
5. The main contention of the petitioner in this case is that he was assessed as
‘Average’ by the Mizoram Public Service Commission although in the ACRs for the
years 1994-95, 1995-96, 1996-97 and 1997-98 he was graded as ‘Good’ but in the
ACR for 1998-1999 he was graded ‘Average’. According to the petitioner since he
was graded ‘Good’ in 4 (four) ACRs it is not possible that he should be graded
‘Average’ in the last ACRs. According to the petitioner the grading of the petitioner as
Average has adverse affect but the said grading was not communicated to the
petitioner. In support of this contention the petitioner relied in the case of U. P. Jal
Nigam and Ors-vrs- Prava Chandra Jain and Ors. Report in 1996 Vol 2 SCC 363. In
the said case, the petitioner therein was earlier graded as ‘outstanding’ but latter on he
was reduced to the level of ‘Satisfactory’ and this was not communicated to him. By
this down-grading the case of the petitioner therein was down grade by four stages.
Therefore the Apex Court held that it was adverse.
6. In the instant case the petitioner was graded ‘Good’ in four ACRs but was
given ‘Average’ in the last ACR. This down grading of the petitioner from ‘Good’ to
Average in my consider opinion is not adverse to the petitioner, as shall be discussed
herein below.
7. In pare 3.3 of the Office Memorandum dated 3.9.1998 the Procedure to be
observed by Departmental Promotion Committee (DPC) it is clearly stated that
Average may not be taken as Adverse remark. This has also been clarified by the State
Govt. in the letter dated 24.8.2000 Annexure-C (iii) to the affidavit-in-opposition of
the State Respondent, whereby it was clearly stated that average itself is not taken as
adverse remark. For the purposes of clarification in this point the said letter Annexure
– C (iii) is reproduced below:-
552
“With reference to your letter No. a. 20012/10/94-DAT/73 dated 27.6.2000 on the above subject, I am directed to state that since the post of Auditor is a Gazette post, promotion to the post was considered by MPSC and officiating promotion was given to Pi Lalhmachhuani, Assistant Auditor in the recommendation of MPSC after comparative analysis of ACRs of the candidates. As per Recruitment Rules, the post of Auditor is a Selection post and ACR is the sole criteria for selection
From a plain reading of the said representation submitted by Pu L.
R. Colney, it seems that the officer is having a misconception and confusion about ‘Average’ itself is not taken as ‘Adverse’ remarks in respect of an officer. At the same time it cannot be regarded as ‘Average’ performance should be regarded as routine and undistinguished. It is only performance that is ‘above Average’ really note worthy which should entitle an officer to recognition and suitable rewards in the matter of promotion. Hence the question of ignoring ‘Adverse’ remarks does not arise since ‘Average’ is not an ‘Adverse’ remarks as stated above
With regard to supercession of officer with lower grading by those
with higher grading, officers graded ‘Good’ will be superceded by officers graded ‘Very Good’ for at least 4 (four) years of his ACRs including the last ACR when the minimum length of the service required at the feeder grade for promotion is 5 (five) years, This is as provisions contained in the O. M. No. A 32012/1/81-APR (B)/loose dated 3.9.98 of DP & SR (GSW). It is therefore, very clear that there is no deviation from Rules.
Therefore, the aggrieved officer may be properly informed in line
with the above facts and he may be further informed to improve his performance in future”
8. The above letter was duly communicated to the petitioner by Director,
Accounts and Treasuries vide his letter dated 31.8.2002 (annexure-c (IV) to the
affidavit-in-opposition).
9. It is not disputed that the procedure of selection was made by the Mizoram
Public Service Commission in accordance with the para 3.5 (i) of the said Office
Memorandum dated 3.9.98 and that the selection was also made on that basis. In the
said selection by the Mizoram Public Service Commission the condition laid down in
the said para 3.5 (i) of the office memorandum was also duly complied with in as
much as the name of the petitioner and respondent no.5 and other candidates were
arranged in the order of their inter-se-seniority. This fact is also not disputed by the
petitioner. The only contention of the petitioner is that the bench mark of the petitioner
was above as Average only because of the fact that his ACRs was shown as Average
for the year 1998-1999.
10. In para 3.4 (G) of the said office memorandum is provided that “availability of
the ACR for the last year in essential as this most often determined that status of the
Government servant’s ACR. Hence the last year ACR of the officer should be
553
furnished the time of submission of proposal/Agenda Papers”. A bare perusal of the
said provision of the Office Memorandum shows that the Mizoram Public Service
Commission has given the Bench Mark of the petitioner as Average as his last ACR
was ‘Average’
11. In the writ petition nowhere is stated that the Average Bench Mark given to the
petitioner is ‘Adverse’ to him. The petitioner mentioned this Adverse Remark only in
his representation dated 9.8.2000 (annexure-11 Writ Petition) submitted by him to the
Chief Secretary, Government of Mizoram. In reply to this representation of the
petition the State government has issued the said letter dated 24,8.2000 as quoted
above. The petitioner did not assailed this letter as clarified by the State Government
although the same was communicated to him and that the Writ Petition was also filed
much after the said letter intimated to the petitioner.
12. Considering the discussion made above this court is of the said view that the
matter of selection as had provided in Para 3.5 (i) of the said Office Memorandum and
the letter dated 24.8.2000, the provisions made therein have been fully complied with
the Mizoram Public Service Commission. As regard the Bench Mark of the Average
given to the petitioner by the Mizoram Public Service Commission this court is of the
view that the same cannot be Adverse to the petition as the petitioner was down
graded by one stage only and not by 4 stages as in the case of U.P. Jalnigam and Ors –
Vrs – Union of India (Supra). Therefore the case of the petitioner cannot be treated at
par with the said case. The matter is further being made clear in the said Office
Memorandum and the said letter dated 24.8.2000 (quoted above) that the Bench Mark
average is not adverse to the petitioner. The mere submission of the learned counsel
that the grading average given to the petitioner is adverse could not be accepted as
there was no such statement made in the Writ Petition.
13. In view of the above facts, I am of the view that there is no merits in this
petition and accordingly, it is dismissed
14. Considering the facts and circumstances of this case there will be no order as
to costs.
15. The interim order passed by this court on 5.9.2000 stands vacated.
***
554
W.P.(C) NO.84 OF 1999 D.D. 21.8.2001
The Hon'ble Mr. Justice Ranjan Gogoi
Vanlaldika & Others – Petitioners -vs- The State of Mizoram & Others – Respondents Promotion to the post of Executice Engineer in Grade-V from Grade-IV of Mizoram Engineering Service (P.W.D.). Mizoram Engineering Services Rules 1995 – Rule 18(3) provides for promotion from Grade-IV to Grade-V on the basis of seniority cum merit – Under Rule 18(7) other things being equal preference can be given to Post Graduate Degree holders for promotion at different levels provided that such a Degree is relevant to the works concerned in the promotional post – P.S.C. though consulted the Government and Government clarified that Rule 18(7) would operate provided that the Government declares that such Post Graduate Degree is relevant to the works concerned but did not verify to know whether there was a declaration made by the Government that P.G. Degree possessed by Respondents 5 and 6 was relevant for the works concerned – P.S.C. placed Respondents 5 and 6 who were juniors to petitioners at Sl.No.1 and 2 in the promotional list and recommended for promotion and they were actually promoted. High Court in view of the fact that there was no declaration that P.G. Degree possessed by Respondents 5 and 6 was relevant for the works concerned has set aside the promotion made on the basis of recommendation of P.S.C. with a direction to re-do the list.
JUDGMENT
Aggrieved by the actions of the Mizoram Public Service Commission in
recommending the Respondents No.5 and 6 at Sl.No. 1 and 2 for the post of Executive
Engineer in Grade-iv of the Mizoram Engineering Service (P.W.D) and apprehending
the impending promotion of the said respondents, the instant writ petition has been
filed. During the pendency of the present writ application, a consequential order of
promotion dated 17th December, 1999 promoting the respondents No-5 and 6 and
along with the first three petitioners was made. Subsequently, by another order dated
7th February, 2000, the remaining petitioners namely, the petitioners No.4 and 5 were
also so promoted. The aforesaid development which has been brought on record by
the learned counsel for the parties, have narrowed the compass of the controversy in
this litigation to initially one of inter se seniority in the rank of Executive Engineer in
Grade-IV of the service and the date/dates for which such promotion are to effective.
2. Mr. C.Lalramauve, learned counsel appearing for the petitioners in a short and
precise argument has placed before the Court the provision of Rule 18(3) and 18(2) of
the Mizoram Engineering Service Rules, 1995 (herein-after referred to as the Rules).
555
Under Rule 18(3), the promotion from Grade-iv to Grade-v of the service is to be
made by adopting the criteria of seniority-cum-merit. Under 0Rule 18(7), other
things being equal, preference can be given to the Post Graduate holders for promotion
at deferent levels provided that such a discrimination about in the "works concerned".
The learned counsel submits that the admitted facts of the case would go to disclose
that the petitioners and the Respondents No.5 and 6 are equal in merit having been
graded 'very good by the authority'. The operation of Rule 18(7) of the Rules cannot
come into the present case in as much as there is nothing on record to indicate that the
Post Graduate degrees which the Respondents No-5 and 6 possess, have been found to
be relevant to the works concerned. The condition subject to which Rule 18(7) of the
Rules would come in to play., it is submitted, are not present. Therefore, according to
the learned counsel, the promotion has to be made on the criteria of merit-cum-
seniority which has been not been followed and the petitioners have been wrongly
bypassed by juniors namely, the respondents No.5 and 6.
3. Mr. Lalsawta, learned counsel appearing for the Public Service Commission by
referring to the minutes of the selection proceeding has placed before the court the
basis of the recommendation made in favour of the respondents No.5 and 6 at Sl. No.
1 and 2 of the merit list. I have perused the contents of the aforesaid minutes of the
selection process. It appears that the Public Service Commission had, for its guidance,
sought the views of the State Government as to the correct meaning of Rule 18(7) of
the rules. In response, the state government had clarified that Rule 18(7) of the Rules
would operate provided that the government declares that such post graduate degree is
relevant to the works concerned in the promotional post for which the government
should specify certain/particular post, where such preference should be given or such
post graduate degree qualification is relevant. There is nothing in the minutes of the
selection meeting of the commission to indicate that for the promotional post in
respect of which the selections were held, necessary Government declaration had been
intimated to the Commission so as to enable the Commission to place the respondents
No.5 and 6 at Sl. No.1 and 2 of the select list by relying on their post graduate
qualification.
4. Mr. T Vaiphei, learned Additional Advocate General, Mizoram has placed
before the Court copies of the promotion orders of the petitioners and the respondents
No.5 and 6 dated 17th December,1999 and 7th February, 2000. According to the
learned Addl. Advocate General, as the petitioners have also been promoted to Grade-
IV of the service, the petitioners would not have any surviving cause of action and the
writ petition has become in fructuous. I have considered the aforesaid submission and
556
I am unable to agree with the learned Addl. Advocate General. The promotions of the
petitioners No.1, 2 and 3 by order dated 17th December 1999 and the Respondents
No.5 and 6 by order dated 17th February 2000 have definitely narrowed down the
controversy but the said promotion can not be understood to have rendered the present
proceeding in fructuous. This court still will be required to consider the legality and
validity of the promotion orders passed in favour of the Respondents No.5 and 6 and
in the event the court finds that such promotion is not tenable, appropriate orders
directing retrospective promotion of the petitioners will have to be made.
5. Mr. Lalrinathanga, learned counsel for the respondents No.5 and 6 has placed
before the court contents of Para 10 of the affidavit filed on behalf of the said
respondents. In support of the plea that rule 18(7) of the rules have been rightly
applied to the instant case, it has been submitted that the respondents no.5 and 6 have
acquired post graduate degrees in civil engineering and the promotions being to posts
of civil engineers in the higher cadre, such post graduate degrees possessed by the
respondents No.5 and 6 are certainly relevant for the promotion to the next higher
post. I have considered the submission. In the absence of a similar stand on behalf of
the state authorities, I am unable to give the benefit of the aforesaid stand to the
respondents No.5 and 6 who are the beneficiaries of the orders of promotion. That
apart whether post graduate qualification in any particular discipline is a relevant
factor for a promotional post is a matter to be decided by the state government on
adequate materials; the higher /promotional post in respect of which such benefit can
be given have to be identified by the government. A no record of the government
indicating that such an exercise has been carried out is before the court. I am unable to
accept the submission made by the learned counsel for the respondents No.5 and 6.
6. Rule 18(7) of the Rules is clear and unambiguous in its content and meaning
the said rule has been further clarified by the state government in its communication to
the Public Service Commission indicating the manner in which the aforesaid Rule
18(7) is to be applied by the commission at the time of making its recommendation. In
the absence of any materials before this Court to indicate that the Government had
performed the exercise of declaring that the post graduate degrees possessed by the
respondents No.5 and 6 are relevant to the works involved in the promotional posts
and also in the absence of any government order indicating that the promotional posts
for which the selection was held have been specified and identified for conferring any
additional advantages on account the post graduate qualifications, I am unable to hold
that the recommendations made by the Public Service Commission in favour of the
respondents No.5 and 6 in preference to the writ petitioners and the consequential
557
promotional orders passed in favour of the respondents No.5 and 6 have the sanctity of
law which can merit approval of this court. In view of the above, this court is of the
considered view that the petitioners have been wrongly overlooked and bypassed by
the authority in the matter of promotion to grade-IV of the service on the basis of the
selection held on 22nd June 1999. A in the meantime, all the petitioners as well as the
respondents No.5 and 6 have been promoted, the authority will now pass necessary
orders ante dating the promotion of the petitioners and /or placing there above the
respondents No.5 and 6 in the merit list prepared as well as in the promotion order
dated 17th December 1999 and on that basis determine their seniority in the higher
post.
7. With the aforesaid observations, this writ petition stands closed.
***
558
Writ Appeal No.13/2000 D.D. 3.4.2002
The Hon'ble Mr. Justice D.Biswas The Hon'ble Mr. Justice I.A.Ansari
C.Lalmal Sawma – Appellant -vs- Donatus Engzanang – Respondent
Selection by P.S.C. for promotion on the basis of A.C.Rs Promotion of Appellant as Vice-Principal, Sericulture Training Institute, has been set aside by the High Court because of improper assessment of A.C.Rs by P.S.C.
In this Appeal, the Division Bench has upheld the order of the Single Judge.
Case referred:
(1996) 2 SCC 363 U.P. Jal Nigam and others v. Prabhat Chandra Jain and others
JUDGMENT
Heard Mr. H. Lalrinthanga, learned counsel for the appellant; Mr. George
Raju, learned counsel for the respondents No. 2 to 5; Mr. A. R. Malhotra, learned
counsel for the respondent No. 1 and Mr. Michael Zothankhuma, learned counsel for
the respondents No. 6 to 9
This appeal is directed against the judgment and order dated 5.1.2000 passed
by the learned Single Judge in WP(C) no. 45/97 whereby the promotion of the present
appellant to the post of Vice-Principal, Sericulture Training Institute, Zemabawk,
Aisawl has been set aside.
The respondent No. 1 herein as writ petitioner filed the aforesaid writ petition
challenging the recommendation of the Mizoram Public Service Commission for
promotion of the respondent No. 9 to the post of Vice – Principal, Sericulture Training
Institute, Aizwal and the orders passed by the State Government promoting the
respondent No. 9
We have done through the judgment of the learned Single Judge and other
materials on record.
The learned Single Judge appears to have intervened with the recommendation
of the Mizoram Mizoram Public Service Commission and the orders of promotion
passed by the State Government mainly on consideration of the fact that the entries
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made in the ACR of the writ petitioner were revised and down graded by the
Commission and that the down grading was perilous to the service intere-se of the writ
petitioner. That apart, the learned Single Judge also found that the down-grading of the
writ petitioner after re-assessment by the Commission was not communicated to the
writ petitioner before being acting upon.
There is no dispute that the writ petitioner was sender to the appellant in the
post of District Sericulture Officer. The seniority list published by the State
government vide Notification dated 7.12.93 also shows that the respondent No. 9 is
junior to the writ petitioner. According to Shri Malhotra, the learned counsel, the
down grading of the ACR of writ petitioner by the Commission was contrary to the
provisions of law and that had it not been done the writ petitioner would have been
promoted on consideration of his seniority as well as the performance report recorded
in the ACR.
Now, the question is whether the assessment made by the Commission
contrary to the provisions of law and the principles of natural justice. This aspect of
the matter has been dealt with by the learned Single Judge in paragraphs 12,13 and 14
of the judgment relying on the ration available in U. P. Jal Nigam and others –vs –
Prabhat Chandra Jain and others, (1996) 2 SCC 363. In the given facts and
circumstances of the case at hand, the learned Single Judge came to the conclusion
that the graded entry has been further down graded by 2 steps falling from
“outstanding” to “good” and according to the learned Single Judge, such downgrading
ought not to have been made by the Commission without recording reasons for the
same. It was not disputed before the learned single judge that the aforesaid
reassessment and downgrading was not communicated to the writ petitioner, which in
turn has deprived the writ petitioner the right of defence by way of representation. On
this context, the recommendation of the Commission and the consequential orders
passed by the State government promoting the Respondent no 9 were interfered with.
On consideration the gamut of the entire situation we find no reason to disagree with
the decision of the learned single judge. In our considered opinion, this appeal is
devoid of merit and hence deserves dismissal.
Order accordingly.
Before parting with the record, we would like to emphasis that the Commission
before initiating fresh exercise in this direction shall first set at right the error made in
re valuating the ACRs of the officers in accordance with the provisions of law,
particularly the observation made by the Supreme court in U. P Jal Nigam (supra).
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NAGALAND PUBLIC SERVICE COMMISSION
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GAUHATI HIGH COURT (Kohima Bench)
W.P.(C)No.158(K)2000 & connected cases D.D.28.3.2003
Hon'ble Mr. Justice B.Lamare
Shri N.Renbio Lotha & Ors. - Petitioner –vs- State of Nagaland & Ors. - Respondents Regularisation of appointment on contract basis: Petitioners were appointed as Supervisors in the Centrally Sponsored Scheme under I.C.D.P. project during 1996-97 initially for 4 months/one year –services extended from time to time – PSC advertised 35 posts of Supervisors and some of the writ petitioners applied but not selected/some of them applied but did not appear for selection test/some of them did not apply. Petitioners alleged that as against 58 posts, the State Government sent requisition only for 35 posts and that some Supervisors appointed on contract basis were regularized without facing the selection test of PSC. HELD – The High Court following the decision of the Supreme Court in (1992) 3 SCJ 416 has held that the petitioners have no right to claim regularization of their services as their appointments were purely ad hoc/contract basis without following the Rules.
Cases referred:
1) (1992) 3 SCJ 416 (Hariyana & Ors. –vs- Piara Singh & Ors.) 2) 1997 III GLT 71 (State of Assam & Ors. –vs- Smt. Pratima Das & Ors.) 3) 1996 II GLT 462 (Dhyanesh Karmakar & 5 Ors. –vs- The State of Tripura &
Ors.)
JUDGMENT 1. Heard Mr.E.Y.Renthungo, learned counsel for the petitioner, Mr. I. Jamir,
learned Addl.Advocate General for the state respondents and Mr.L.S.Jamir for the
respondent No.4.
2. These writ petitioners are taken up together as it relates to the same subject
matter and the same question of facts and laws are involved and accordingly, these
writ petitions are disposed of by this common judgment.
3. The petitioners were appointed as supervisors in the centrally sponsored
scheme under the project known as integrated child development project [ICDP]. The
petitioner No.5 in W.P.[C] NO.197[K]02 was appointed in the year 1996 on contract
basis initially for a period of 4 [four] months vide order no.SW/ESTT/ICDS-3/87/vol-
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2 dated 19-9-96. The petitioners Nos1 to 4 in the same writ petition were appointed as
supervisors on contract basis initially for a period of one year wide order
no.SW/ESTT/ICDS-26/97/3381-3414 dated 15-9-97. All the petitioners in W.P.[C]
Nos. 158 & 185[k] of 2000 were appointed by the same order No.SW/ESTT/ICDS-
26/97/3381-3414 Dated 15-9-97 on contract basis initially for a period of one year.
Thereafter, the services of all the petitioners were extended from time to time. While
the petitioners were serving as such on contract basis, the respondent No. 4, Secretary,
Nagaland public service commission [NPSC] issued advertisement No.3/99-2000
dated 6-10-99. Amongst the posts advertised, 35 posts were of supervisors. In
response to the said advertisement, some of the petitioners submitted their applications
but some did not submit and some submitted the applications but remained absent
from the interview. The position of the petitioners with regard to their response to the
advertisement and the roll no. and code no. relating to their applications submitted
against the advertisement is shown below :-
W.P.(C) NO. 158(K) 2000 SL.NO. NAME ROLL NO CODE NO 1. N.Renbeo Lotha 1714 3830 2. Mark sangtam 1559 3743 3. Z.Avito sema 46 3022 4. Egwang 1937 3933 5. W.Chingkham phom 717 3342
6. Catherine Yepthomi 834 3415 7. N.kyulongse sangtam 2032 3983 8. Vehuvo phesao Application not submitted 9. Bendangnaro Application not submitted 10. Libeni enyie 864 3406 11. Lirenthung odyua Application not submitted\did not Appear 12. Viketuozo pienyu 827 3390 13. Chubamenla Imchen 1863 3898 14. Keyehe H.Ayemi 1440 3689 15. katolu shohe Application not submitted 16.
W.P(C) NO.185(K)2000 1. Tsenbemo Shitiri Application not submitted /absent
2. Neikerhenuo Miachie-o 984 c. 3. Nikape Mekhro 186 3084 4. T.Nongyong konyak 340 3160
W.P.(C).NO197.(K)2002
1. T. Chubawati Application not submitted 2. Chingshak konyak 1236 3587 3. Akato Yeptho Application not submitted 4. Ashibo Aye Application not submitted 5. V.Kasheli sumi Application not submitted
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4. The case of the petitioners is that the services of the petitioners were extended
from time to time however, by order dated 25-8-2000 their services were extended by
creating a break of one day thereby the petitioners were deprived of their regular
service by making this break of one day which shows the malafide intention on the
part of the respondents to deprive the petitioners of their continuous length of service.
It is also the case of the petitioner that Ministry of Human Resource, Govt. of India
has increased the ICDS project from 27 to 52 projects. By increasing the number of
ICDS projects the post of supervisor has also been increased to 58 numbers. The state
respondents instead of making requisition of 58 posts of supervisors has requisition
only 35 posts of supervisors for selection by the NPSC. Therefore, the action of the
respondents in not making requisition of 58 posts of supervisor has deprived the
petitioners of their chance to be selected by the NPSC. It is also the case of the
petitioners that some of the supervisors were regularised without facing selection
conducted by the NPSC. Therefore, according to the petitioners, the action of the
respondents is tainted with malafide and there was a lack of transparency in the
method of regularisation/selection of supervisors in the ICDS projects in the state.
5. The state respondents resisted the case of the petitioners by filing an affidavit
in opposition and stated that it is not correct that 35 posts of supervisor were created in
the year 1997 but only 32 posts were created. According to the office memorandum
No.AR-2/1/87 dated 18-6-87 the contract appointment can be made only for a period
not exceeding one year. However, if regular selection could not be made within the
said period, the contract appointment may be extended only with the prior approval of
the government which was done in the instant case. As all appointment of supervisors
were made on contract basis, the state respondents has made requisition to the NPSC
for 35 posts and accordingly, the advertisement was issued by the NPSC. Those
petitioners who applied for the post could not qualify the selection test and some of
those petitioners did not even apply for the posts and some had submitted application
but did not appear in the selection test. Therefore, the petitioners cannot claim
regularisation of their services without facing the selection by the NPSC.
6. The respondents also, stated in the affidavit-in-opposition that the petitioners
were appointed purely on contract basis as a stop gap arrangement not in accordance
to the rules and hence the petitioners have no right to claim for regularisation . The
requisition made to the NPSC for 35 posts is within the power of the state government
and that the petitioners have no right to challenge about/the requisition of the posts
from the NPSC selection. It is also stated in paragraph 9 of the affidavit that the
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respondents in exercise of their administrative power has decided to requisition for 35
posts and with the intention that the process of selection will continue for the
remaining posts in usual course. The intention behind, is that by making requisition for
recruitment to the posts at different stages is with a view to encourage up coming
talented youths in search of employment to apply for the post at different times when
the posts were advertised by the NPSC. If all the posts were advertised at the same
time, the person so appointed would get no chance of promotion and will retire in the
same posts to which they were recruited. Moreover, if all the posts were advertised at
the same time, there will be no opportunity for the new talented youths to apply for the
post and that it will deprive the new applicants of this opportunity which is not in the
interest of the unemployed youths of the state.
7. Mr. E.Y.Renthungo, learned counsel for the petitioners has submitted that
the respondents have advertised only 35 posts and that those petitioners who have
submitted applications were not selected although they been continuing in service
since the year 1996/97. It is also submitted that there is no rules of the state
government for recruitment to the post of supervisor and that the state respondents
were adopting the process of pick and choose in the matter of regularization of the
services of the supervisors. As a result of this, some supervisors were regularised
without facing the selection test. The action of the respondents therefore is highly
arbitrary and discriminatory.
8. Mr. E.Y.Renthungo also submitted that if there is any rules framed by the
government in 1982, the rules are only draft rules as the same has not been published
in the official gazette and therefore, the said 1982 rules is not applicable in the instant
case as the rules shall come into force only after it is published in the official gazette.
9. Mr.I.Jamir, learned addl. Advocate General submitted that the 1982 rules
known as '' Nagaland Social security & welfare service rules, 1982 was framed for
class-I and class-II gazetted post in the deptt.of social security & welfare department,
Govt. of Nagaland and the rules was duly published in the Nagaland gazette on 14th
May 1983 and therefore, the rules has come into force from the date of publication in
the official gazette. According to Mr. I. Jamir, rule 6 of the rules is applicable in the
instant case. Mr. I. Jamir also submitted that the 1982 rules was repelled by the
Nagaland social security & welfare service (revised) rules, 1997 and this rules was
published in the Nagaland gazette on 15-5-98. Therefore, according to Mr. I. Jamir
since the petitioners were appointed in 1996/97 their services were not covered by the
1997 rules but was governed by the 1982 rules. Therefore according Mr.I. Jamir the
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contention that the 1982 & 1997 rules were not in force is not correct as the rules were
duly published in the Nagaland gazette.
10. Mr.L.S.Jamir, learned counsel appearing for the NPSC while supporting the
submission of Mr. I. Jamir contended that the NPSC has advertised the post as per
requisition of the department. The selection was conducted for written and viva voce
test in the year 2000 & 2002 respectively and the names of the candidates in order of
merit was submitted to the department. The selection of candidates by the NPSC was
not challenged by the petitioners in these writ petitions. Therefore, according to
Mr.L.S.Jamir the petitioners have no right to claim for regularisation of their services
without going through the selection test.
11. Without going further into the claims and counter claims made by the parties
in these cases, suffice it to say that the appointment of the petitioners is admittedly
made on contract basis for a certain period in accordance with the standing office
memorandum dated 18-6-87 of the state government. Their services were also
extended from time to time with prior approval of the state government as per the
office memorandum. At the relevant time when the advertisement was issued by the
NPSC on 6-10-99, the petitioners have completed only 2 (two) years one month in
service. However, by virtue of the interim order passed by this court, the petitioners
were allowed to continue in service till date.
12. Perusal of the records also shows that the petitioners were aware of the
advertisement as many of them had applied for the post of supervisors in response to
the advertisement but they could not come out successfully. It is a settled law that
after the petitioners were aware of the advertisement made for the post and applied for
the posts but could not come out successfully, they cannot then turn around and
challenge the advertisement after they have failed in the selection process. Needless
to say that in none of the writ petitioners the selection was challenged.
13. The records regarding the selection were also produced by Mr.L.S.Jamir,
learned counsel for the NPSC . Records shows that the petitioners who applied /did
not apply or applied but did not appear were very much aware that the posts were
going to be filled up by the process of selection by the NPSC for regular appointment.
Having failed to qualify in the selection, the petitioners have no right to get
regularisation of their services.
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14. The apex court in state of Haryana & Ors. Appellants V. Piara singh & Ors.
Respondents reported in (1992) 3 S.C.J. 416 in paragraph 31 of the judgment has held
as follows:-
"31. Now coming to the direction that all those adhoc, temporary employees who have continued for more than a year should be regularised, we find it difficult to sustain it. The direction gas been given without reference to the existence of a vacancy. The direction in effect means that every ad hoc, temporary employee who has been continued for one year should be regularised even though (a) no vacancy is available for him which means creation of a vacancy (b) he was not sponsored by the Emploment Exchange nor was he appointed in pursuance of a notification calling for applications- which means he had entered by a back door (c) he was not eligible and/ or qualified for the post at the time of his appointment (d) his record of service since his appointment is not satisfactory. These are in addition to some of the problems indicated by us in para 12, which would arise from giving of such blanket orders. None of the decisions relied upon by the high court justify such whole sale, unconditional orders. Moreover, from the mere continuation of an ad hoc employee for one year, it cannot be presumed that there is need for a regular post. Such a presumption may be justified only when such continuance extends to several years. Further, there can be no ' rule of thumb ' in such matters. Conditions and circumstances of one unit may not be the same as of the other. Just because in one case a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications, it cannot be held that in each and every case such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations. The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case. It cannot be a mechanical act but a judicious one. Judged from this stand point, the impugned directions must be held to be held to be totally untenable and unsustainable."
15. The Division Bench of this Court in the case of state of Assam & Ors.
Appellants V. Smti. Pratima das & Ors. Respondents reported in 1997 (III) GLT 71
in paragraph 39 of the judgment has held as follows:-
"39. In face of the above report, which is by and large common with slight
variation here or there, but in substance the same so far as the vitiating factors are concerned the appointments conceived in fraud and delivered in deceit cannot be regularised or validated. There was no selection, no interview, or fake or ghost interviews, tampering with records and fabricating documents. In such circumstances as pointed out by the supreme court in Krishan yadav – Vs- State
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of Haryana , AIR 1994 SC 2166, an inference can be drawn that all was motivated by extraneous considerations. The entire process of making appointments is stinking. Really speaking, the moment posts were allotted to a particular district, it was a free play for all and the net result is these appointments. All norms of procedural fairness had been thrown to winds the rules were given a convenient go-bye. Articles 14 and 16 of the constitution violated with impunity. These petitions are, therefore, liable to be dismissed and accordingly dismissed with no order as to costs."
16. As already discussed above, the petitioners in these cases have only prayed for
regularisation of their services and have not challenged the process of selection by the
NPSC nor the rules applicable for direct recruitment. In other words, the 1982 rules
applicable in this case are not assailed by the petitioners and that it is also not
challenged that the selection made through the NPSC was not in accordance with the
rules. Therefore, as observed by this court in the case of Smti. Mira Roy V.State of
Tripura & Ors. reported in 2000(III) GLT 322 that since the rules was not challenged,
there is no necessity to consider the case of the petitioners via-a-vis the rules.
Admittedly, the petitioners were not selected according to the rules. The contention of
the learned counsel for the petitioners that they have been in service since 1996/97 and
they are entitled to regularisation of their services, as they would face difficulties and
hardship in case they are thrown out of service at this stage cannot be accepted. The
reason is that when the rules are in existence and that they were appointed dehors the
rules their cases cannot be considered on humanitarian ground in the process of justice
delivery system. If the contention of the petitioners is accepted, the rules will have to
be given a go by which is not in accordance with the requirement of justice delivery
system.
17. Coming to the claim of the petitioners that they are entitled to be
regularised as they are in service till date, it is an admitted position that when the
advertisement was issued on 6-10-99 the petitioners have completed about 2 years one
month of service. They were allowed to continue in service only by the interim order
granted by this court when the petitioners approached this court. This question has
been set at rest by the decision of this court in the case of Dhyanesh Karmakar & 5
Ors, petitioners V. The state of Tripura & Ors. Respondents reported in 1996 (II) GLT
462 where by this court in paragraph 6 of the judgment has held as follows:-
" 6. In view of the incontrovertible position, really speaking, these
petitions should have been thrown out at the very threshold. The writ jurisdiction of this Court under Article 226 of the constitution is essentially an equitable jurisdiction and cannot be allowed to be invoked for retaining an unconscionable gain. It is the stay order granted which procrastinated the hearing. The supreme court having cautioned in umpteen cases against passing of such interim orders in service matters, the petitioners can not be allowed to take any
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advantage of the interim stay order passed by this court on 30th August, 1993 so as to include the period so converted by stay order in calculating their length of service, as the legal maxim goes—'ACTUS CURIAE NEMINEM GRAVABIT' (An act of court shall prejudice no one.)".
18. Therefore, the petitioners in these cases are not entitled to get the benefit of
the interim order of this court allowing them to continue in service till date.
19. In view of the discussions and observations made above, I am of the view that
the petitioners having appointed on ad hoc/ contract basis have either failed or did not
appear in the interview conducted by the NPSC have no right to claim for
regularisation of their services as their appointments were purely on ad hoc / contract
basis without following the Rules.
20. For the aforesaid reasons, the writ petitions fails and the same are hereby
dismissed. However, considering the fact that the petitioners are in service till date, if
there are vacancies over and above those which are selected as per advertisement, the
present petitioners may be allowed to continue against those vacancies and also be
allowed to appear in the next selection to be made through the NPSC by relaxing their
age limit.
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ORISSA PUBLIC SERVICE COMMISSION
570
SUPREME COURT OF INDIA 1995(1) ATT (SC) 441
D.D. 27.10.94
Hon'ble Mr. Justice K.Ramaswamy Hon'ble Mr. Justice N.Venkatachala
Sarat Ku Dash & Ors. – Appellants Vs. Biswajit Patnaik & Ors. – Respondents
Selection by Promotion In case of merit cum suitability, seniority should have no role to play. Even a junior most person can jump the queue for accelerated promotion. Cases referred:
1. R.S.Das vs. U.O.I & Ors (1986 Suppl. SCC 617) 2. National Institute of Mental Health & Neuro Sciences v. Dr.K.Kalyan Raman
& Ors. (AIR 1992 SC 1906, para 7) 3. Syed Khalid Rizvi & Ors. Vs. U.O.I. & Ors. (1993 Suppl.(3) SCC 575)
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Civil Appeal Nos.3929-3932/1990 D.D. 2.4.1997
Hon'ble Mr. Justice K.Venkataswami Hon'ble Mr. Justice S.P.Kuppukar
Orissa P.S.C. – Appellant Vs. Gobinda Mohan Swain & Anr. – Respondents Held – Short listing of candidates can be done by P.S.C. even in emergency recruitment but must adopt proper method – Short listing by taking the academic marks alone into consideration is not proper.
ORDER
These appeals are directed against the judgement of the Division Bench of the
High Court of Orissa setting aside the selection of Munsifs to Orissa Judicial Services
Class II on the ground that the short listing done by the appellant was without
authority.
Even though notices were served on writ petitioners who were the I-respondent
in each case. They do not appear before us to contest the cases.
At this distance of time we do not propose to upset the selection as the selected
candidates by virtue of interim orders of this Court are functioning as Judicial
Officers. It is pointed out that the selection in question was done under Orissa judicial
Services. Class-II (Munsiff Emergency Recruitment) Rules, 1979. We agree with the
agreements of the learned counsel for the appellant that even in the emergency
recruitment short listing of the candidates is unavoidable. At the same time, we must
also observe that the method to which the short listing is done in the present case is not
acceptable. As in our view this short listing by taking the academic marks alone into
consideration will not serve the purposes.
We wish to make it clear that the directions given by the High Court in
paragraph 13 should be complied with by the State Government if they have not
already done so. Until the directions given by the High Court in the said paragraph is
complied with, recruitment under the Emergency Rules shall not be resorted to. With
these observations, we uphold the selection has been set aside by the High Court.
These appeals are accordingly disposed of.
No order as to costs.
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572
ORISSA HIGH COURT O.J.C. No.6446 of 1994
D.D.30.4.97
Hon'ble Mr. Chief Justice S.N.Phukan Hon'ble Mr. Justice A.Pasayat
Sri. Samarendra Kumar Bal – Petitioner Vs. State of Orissa & Anr. – Opp. Parties Held – Amendment providing for preliminary Screening Test of all the eligible candidates on the basis of marks obtained in different University Examinations etc., for the purpose of short listing is illegal. Cases referred: AIR 1987 SC 454 Ashok Kumar Yadav v. State of Haryana AIR 1995 SC 77 M.P. P.S.C. –vs- Navnit Kumar Potdar
JUDGMENT
In all the aforementioned four petitions, the point of law involved is the same.
Therefore, they were taken up together and are disposed of by common order.
In pursuance of the advertisement dated 25-09-1993 published by the Orissa
Public Service Commission, the petitioners applied for the post of temporary munsif
(emergency recruitment) in Class-II of the Orissa Judicial Service. The grievance of
the petitioner is that they were not called for interview. They have challenged the vires
of the Orissa Judicial Service Class-II (Munsif) (Emergency Recruitment)
(Amendment) Rules 1993.
Rule 7 of the Orissa Judicial Service Class-II (Munsif) (Emergency
Recruitment) Rules 1979 read thus:-
“7. Recruitment to the post of temporary Munsifs shall be by an interview conducted by the Public Service Commission. Provided that a nominee of the High court shall be present at the interview and advise the Commission regard to their knowledge of law and aptitude for judicial service”
After the amendment in 1993, the said rule runs as follows:-
“7(1) Recruitment to the post of temporary Munsifs shall be made by an interview conducted by the Public Service Commission and in every such interview a sitting Judge of the Orissa High Court nominated by the Chief Justice shall be present to advise the Commission on the fitness of the candidates from the point of view of their possession of the special qualities required in the judicial service, but he shall not be responsible for the selection of candidate.
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2) The number of candidate to be called for the interview shall at the most be three times the number of vacancies advertised and one hundred marks shall be earmarked for such interview
3) Not withstanding anything to the contrary in these rules, where it is considered expedient, the public service commission for the purpose of determining the number of candidates referred to in sub-rule (2) may make a preliminary screening of all the eligible candidates on the basis of the marks obtained in different university examinations and the length of practice at the bar.”
The point raised by the petitioners is that in awarding career marks, Master
Degree in subjects other than law should not be taken into account. It may be stated
here that all the petitioners were short listed because they could not qualify on the
basis of career marking. Therefore, they were not called for interview.
In the counter affidavit filed on behalf of the opposite parties, it has been stated
that keeping in view the requirements for the posts of Munsif, eligibility criteria of a
candidate for recruitment to the said post have been prescribed under the aforesaid
Rules. It has also been stated that for obtaining Master Degree in Law and for practice
at the bar, more marks are awarded towards career marking. It has been mentioned
that this was decided by the then Hon’ble Chief Justice of this High Court in a meeting
attended by the Chairman of the Orissa Public Service Commission, and the Secretary
to the Government of Orissa, Law Department. Therefore, there is no infirmity or
illegality in rule 7 as amended. It has been also been stated that assessment of the
academic achievement of a candidate on the basis if class/division secured in various
examinations including Master Degree in necessary in order to secure that better
talents are selected for the post. In this connection, our attention has been drawn to a
decision of this Court on O. J. C 69 & 106 of 1993, dispensed as on 28.1.1993. We are
of the opinion that this decision is not relevant as it was confined to the old Rules and
recruitment to the post of Orissa Superior Judicial Services (Senior Branch)
Learned counsel for the petitioners took us to the decision of the Apex Court in
Ashok Kumar Yadav -vs- State of Haryana, AIR 1987 SC 45%. But, the ratio laid
down therein is not helpful to the petitioners. It is not incumbent on the public service
commission to call the candidates for interview, and the commission was justified in
awarding career marks to the candidates to determine the exact number of candidates
to be called for interview. It has been urged that career marking for Master Degree in
subjects other than law is irrelevant as it has no nexus to the service. This being purely
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a policy decision, we do not want to interfere. We may only state that it is necessary to
find out the best candidates for recruitment as judicial officers.
We may also refer to the decisions of the Apex Court in M. P Public Service
Commission -vs- Navnit Kumar Petdar, Air 1995 SC 77. In that case, there was a
process of shortlisting of candidates who applied for the post of Presiding Officer,
Labour Court. The Commission took a decision to call for the interview only such
candidates who had completed 7 ½ years of practice, instead of calling for interview
all applicants who had put in 5 years of practice, which is the minimum requirement to
make an applicant eligible to apply for the post. The apex court held that rising the
period of practice from 5 years to 7 ½ years did not amount to changing the statutory
criteria by an administrative decision.
For the reasons stated above, we held that career marking is not illegal and the
public service commission did not act illegally by not calling all the candidates for
interview. The amendment in question is not ultra vires. The writ petitions have no
merit and are, therefore, dismissed.
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O.J.C. 8080/97 D.D.15.5.98
The Hon'ble Chief Justice Mr.S.N.Phukan
The Hon'ble Mr.Justice A.Pasayat Srinivas Samant & Others – Petitioners -vs- The Chairman, Orissa P.S.C. & Anr. – Respondents The petitioners who were unsuccessful in the preliminary examination held for recruitment to different posts in Orissa Civil Services 1997 have filed these writ petitions alleging several irregularities in the evaluation of answer scripts, publication of result etc. The High Court after examining the irregularities alleged one by one has dismissed the writ petition holding that the same is devoid of merit.
JUDGMENT
By this common Judgment, we dispose of the aforesaid batch of writ petitions.
In some of the writ petitions, we have taken suo motu action on receiving letters.
2. The Orissa Public Service Commission (for short, the O.P.S.C) issued an
advertisement inviting applications for admission to combined Competitive
Examination, 1997 for appointment to different posts in Orissa Civil Service. A
reference has been made to Orissa Civil Service (Combined Recruitment
Examination) Rules, 1991. Rule III provides for direct recruitment. According to
column-2 of schedule I Of the Rule, direct recruitment has to be done through
competitive examination under the relevant rules, regulations resolutions, etc. The
Commission has to recommend under rule 50 a merit list of the candidates. Rule 4
deals with holding of examination in the manner prescribed in Schedule II.
Application of all the petitioners were found valid and they appeared in the Orissa
Civil Service Preliminary Examination, 1997 held on 23.3.1997. There were two
papers, namely, English and M.I.L. (Oriya/Hindi). All the petitioners, who became
unsuccessful in the preliminary examination have filed the present petitions.
3. It has been pleaded that according to rules, there is no provision for holding
preliminary examination and, therefore, it is violative of the said rules. It has also
been pleaded that normally, codification of examination papers takes place in the
office of the Commission in presence of one member and then stamped and kept in the
locker of the Chairman. Only when all the papers are returned to the office after
valuation that decoding takes place in the office of the Commission. According to the
petitioners, the coding was done by outside agencies like teachers of Revenshaw
College and another college. Persons who were entrusted with the coding work were.
576
Also entrusted with the evaluation of papers. The following allegations have also
been made:-
1. Valuation of answer scripts was erratic and examiners were inexperienced. 2. Candidates who did not appear in the examination have been declared qualified. Two roll numbers were mentioned in the regard, namely, roll nos, 1778 and 5385. 3. Publication of result was erroneous because there were large
gaps in between the roll numbers published. 4. 500 answer scripts were lost in the Ravenshaw college. 5. There were instances of favouritism. 6. Policy of reservation for Schedule Castes and Scheduled
Tribes was not applied in the Preliminary examination.
4. A common counter affidavit has been filed on behalf of the Commission. It
has been stated that examination of recruitment to Orissa Civil Service was held after
a long time – the last examination was held in the year 1996. The Commission could
public the result expeditiously as it adopted for the first time the system of central
evaluation of answer scripts instead of evaluation at the residence of individual
examiners. According to the Commission, having regard to the large number of
candidates, there was a need for qualifying screening test through the system of
preliminary examination which was introduced for the purpose of selection of
candidates for the main examination. In the preliminary examination, 39,082
candidates were admitted. The examination was held in 121 Centres on 23.3.1997.
The number of candidates who took the examination in English and M.I.L. was 32,431
and 32,298 respectively. 9630 candidates were declared qualified to take the main
examination as per the decision of the Commission. In the preliminary examination,
elaborate arrangements were made for evaluation of answer scripts at Ravenshaw
College under the supervision of the Principal, who is a very senior teacher with long
experience. He was the Chief Co-ordinator-cum-Centre Supervisor and was assisted
by the senior members of the teaching staff who acted as Co-ordinators and Deputy
Co-ordinators. Most of the examiners had teaching experience of over ten years and
the Chief Examiner, more than 25 years. The answer scripts were examined by the
college teacher in units of seven to ten each under a Chief Examiner. Scrutinisers
were also appointed for each unit. In addition, valuation officers were engaged to
ensure error-free evaluation by re-checking answer scripts at random. The
commission decided that candidates securing 30% marks in each subject, namely,
English and M.I.L., shall be allowed to appear in the main examination.
5. Some of the unsuccessful candidates represented that they had done very well
in the examination, but to their utter surprise, they were not declared successful. They
asked for re-valuation and they were informed that there is no such procedure, but the
577
answer scripts could be re-checked. It was decided by the Commission that the
application received 30.6.1997 for re-checking would be disposed of which ten days.
292 such requests were received. All those were re-checked and there was not a single
case where it was necessary to change the result published. The candidates were
informed accordingly.
6. Regarding the allegation of coding, it has been stated that coding was duly
done in the Commission's office by dedicated, reliable and responsible persons under
the supervision of very senior officers of the commission. Besides, no person
associated with coding was engaged in evaluation of answer scripts. Regarding erratic
evaluation, it has been Stated that an examiner was required to evaluate only 20
answer scripts in five hour under the direct supervision of Chief Examiners and they
were asked to give an undertaking that none of their close relations had taken the
examination. Evaluations were made under 13 Chief Examiners in systematic and
regular way. Regarding the allegation that candidates, whose roll numbers have been
quoted, did not appear in the examination, but they were declared qualified it has been
stated that the matter has been verified with reference to the evaluated answer scripts.
Attendance sheets, etc. It was found that both candidates had taken the examination in
both the subjects, as certified by the invigilators. As to the allegation of publication of
results in an erroneous manner, it has been stated that in the scheme of allocation of
roll numbers, there was a large range of numbers than candidates admitted to the
examination. Therefore, several roll numbers were not allotted to any candidate. That
apart, out of more than 39000 candidates admitted, about 7000 did not take the
examination. The allegation that a packet containing 500 answer scripts was lost has
been denied. It has been stated that all answer scripts are in safe custody of the
Commission Regarding the reservation policy, it has been stated that qualifying marks
were fixed at the lowest possible level of 30% Keeping in view the interest of the
weaker sections of the society. It has also been stated that in the list of successful
candidates for reserved categories, namely Scheduled Castes and Scheduled Tribes, 61
and 101 candidates respectively have been shown as qualified in the preliminary
examination. The allegation of favouritism has been denied. A chart showing the
percentage of successful candidates in the year 1991,1992,1993 and 1997 has been
indicated in the counter, which would show that percentage of success in 1997
examination was the highest in respect of subject English and M.I.L.
7. The first point to be decided is whether holding of preliminary examination
was legal. In view of the number of candidates, we are of the opinion that the
commission has got the power of short-listing. It is the settled position of law that
578
short-listing is permissible, which is also being done by the Union Public Service
Commission. Therefore, on this point the Commission cannot be faulted.
8. Regarding entrusting the work of conducting the preliminary examination
through independent agency, we are of the opinion that the procedure adopted by the
commission is absolutely correct. Coding was done in the Office of the Commission
under strict supervision. Instead of sending the answer scripts to different examiners
to be examined at their residence, the Commission adopted the procedure of
evaluation at one center under the Chief Examiners and Examiners with long teaching
experience. Ravenshaw College is a pioneer institution of the State. An undertaking
was also given by the Examiners and others that none of their relations were
candidates in the examination. Therefore, the procedure adopted by the Commission
cannot be said to be erroneous, illegal or arbitrary.
9. Regarding other allegations, we are satisfied from the counter affidavits that
those allegations have no merit. We may also bear in mine that the Commission is an
constitutional body and this Court cannot sit in appeal against the procedure adopted
by it provided the same is not arbitrary, illegal or otherwise invalid.
10. We may state here that though answer scripts are confidential documents,
nonetheless, some were produced before another division of this Court in some other
writ petitions and the Bench was satisfied that there has been proper evaluation of
answers and marks secured have been reflected correctly on the top of the answer
script.
11. The above being the position, the writ petitions have no merit and they are
accordingly dismissed. No costs.
***
579
O.J.C. No.610/98 D.D. 27.7.98
The Hon'ble Mr. Justice Susanta Chatterji
AND The Hon'ble Mr. Justice D.M.Patnaik
Dr.Tophan Pati – Petitioner -vs- State of Orissa and others – Opposite parties Held – In the absence of statutory criteria, PSC has the discretion of evolving its mode of evaluation of merit and selection of the candidates. PSC in the absence of any written examination for any recruitment has been following the procedure of selecting the candidates on the basis of career marks + interview marks. In the present recruitment to the post of Junior Teacher (Lecturer) in the Medical Colleges of the State the same procedure has been followed. The petitioner has challenged the selection made by PSC before the State Administrative Tribunal which has dismissed his application.
In this Writ Petition filed against the said order, the High Court has up held the procedure followed by P.S.C. Cases referred: AIR 1960 SC 971 (Vanguard Fire & Gen.Ins. Co. v. Fraser & Ross) AIR 1971 SC 2303 (A.Periakaruppan v. State or T.N.) AIR 1976 SC 1697 (State of Gujarat v. Chaturbhuj Maganlal) AIR 1988 SC 2031 (Atma Ram v. Ishwar Singh AIR 1990 SC 781 (M/s. Goodyear India Ltd. V. State of Haryana) AIR 1994 SC 39 (A.P. State Financial Corporation v. C.M.Ashok Raju) AIR 1994 SC 141 (Anwar Ahmad v. State of Bihar AIR 1997 SC 628 (K.V.Muthu v. Angamuthu Ammal) AIR 1997 SC 2110 (Rajkumar v. Shakti Raj)
JUDGEMENT Dr. Tephan Pati, the writ petitioner in the present case challenges the order
dated 2-1-1998 of the State Administrative Tribunal dismissing his application as to
validity of the selection made by the Orissa Public Service Commission, opposite
party No.3 herein, for filling up vacancies in the posts of Junior Teachers, Psychiatry
in the Medical Colleges of the State.
2. It is stated in greater details in the writ petition that for appointment of teaching
staff in different Medical Colleges of the State, the Orissa Public Service Commission,
opposite party No.3, resorted to absolute illegalities and traveled beyond the Medical
Teachers Recruitment Rules,1979 by taking into consideration marks of the candidates
obtained in studies unconnected with Medical studies and putting them at par with
marks obtained in Medical studies.
580
3. It is placed on record that the petitioner having passed M.B.B.S. in 1979
from S.C.B. Medical College, Cuttack completed M.D. in psychiatry in 1984 was
appointed as an Assistant Surgeon on 3-9-1984 being duly selected by the Orissa
Public Service Commission in accordance with the Orissa Medical Service
Recruitment Rules, 1979, He was attached to the Mental Health Institute in S.C.B.
Medical College, Cuttack from 28-10-1985. While continuing in S.C.B. Medical
College at Cuttack, by order dated 9-8-94 of the Government of Orissa, Health and
Family Welfare Department as per Annexure-2 to the writ application, he was
appointed as a Junior Teacher (Lecturer) in the discipline of Psychiatry and was posted
to M.K.C.G. Medical College Hospital at Borhampur on ad hoc basis. This ad hoc
appointment was preceded by an advertisement in the newspaper and selection by a
Selection Committee and the petitioner was appointed in the discipline of Psychiatry
with many others in different disciplines as mentioned in Annexure- 2.
4. It is highlighted that this appointment of the petitioner vide Annexure-2
was extended from time to time and on the date of filling of this writ application also
the petitioner continued as a Lecturer in the discipline of Psychiatry. Attention of this
Court is drawn to the fact that for recruitment in teaching branch in the Medical
Colleges in the State, statutory rules under the proviso to Article 309 of the
Constitution of India have been framed known as “the Orissa Medical Education
Services (Recruitment) Rules, 1979. As per the said Rules of 1979, recruitment to the
posts of Junior Teachers (Lecturers) in any Speciality or higher speciality is made by
the Orissa Public Service Commission by following the procedure as envisaged in
Rule (4) thereof.
5. There was an advertisement by the Orissa Public Service Commissioner on
31st August, 1996, being Advertisement No. 7 of 1996-97, vide Annexure-4 to the
writ application for filling up Junior Teaching Posts (Lecturers) in thirty one districts
under the Orissa Medical Education Service as indicated therein and the discipline of
Psychiatry finds mention at serial number 23. In para-9 of the said advertisement it
was mentioned that where the applications received would be large in number with
reference to the number of vacancies advertised, the Orissa Public Service
Commission would be entitled to short – list the candidates by resorting to a
preliminary selection of there on the basis of career marks or by conducting a
preliminary written test. It is stated that in the discipline of Psychiatry, there were nine
applicants was not considered to be large no preliminary screening of short-listing was
done. The Orissa Public Service Commission, however, ultimately rejected one
581
application out of nine and called eight candidates to the interview and selection
including the petitioner. After interview and selection, the four candidates impleaded
as opposite parties 4 to 7 in the writ application were selected for appointment to the
posts of Junior Teachers (Lecturers) in Psychiatry which was published in the Notice
Board of the Orissa Public Service Commission, vide Annexure-5 to the writ
application.
6. The petitioner alleges that the Orissa Public Service Commission published the
said list as per Annexure – 5 in gross violation of the statutory rules, i.e. the Orissa
Medical Education Recruitment Rules, 1979 by adopting methods not known to the
same, as a result of which the petitioner was kept out of list and candidates who were
juniors to him having interior marks in comparison to the petitioner were selected.
7. The petitioner has referred to Annexure-6 series, Annexure-7 series as also
Annexure –8 to the writ application as to the achievement of the petitioner. It is
alleged that the Orissa Public Service Commission is course of the interview and
selection committed series of illegalities and infirmities, inasmuch as even the marks
obtained by the candidates in Matriculation, Pre-University/ I.Sc. Examinations and
other Under- Graduate studies were added to the marks obtained in the medical
studies, as a result of which the petitioner was kept out of the list of selected
candidates.
8. It is submitted that it is of great importance to note that no marks were
given in the interview for research publications and there was no consideration of the
experience and academic attainments as mentioned in sub-rule (3) of rule 4 and there
was complete violation of the statutory guidelines.
9. In the writ application Government has also been made with illustration
that in the school level, there are subjects like Sanskrit, Oriya, History, Civics, Social
Studies, Mathematics, Home Science, English etc. which have got nothing to do with
medical studies. One may secure very high marks in such subjects, but the same
cannot be the determining factor and should not in any manner disturb the marks
obtained in the subjects connected with medical career. Certainly academic
attainments would mean the attainments in medical studies, publications in research,
articles in important medical magazines, etc. and experience as Assistant Surgeon /
Teacher and performances connected with the same, the ability and aptitude to teach
means to see whether the man is suitable to discharge the duties of a Teacher with his
educational learning and such being the purpose of the rule, the best Surgeons with
582
their studies and learning could not have been kept out of consideration by applying
career marks not connected with the same.
10. It is also pointed out that in course of the interview, the petitioner came to
know that 100 marks were allotted for career marks and only 10 marks for interview.
In the said 100 marks, the marks obtained in H.S.C. and other under- Graduate studies
unconnected with medical studies were included and as a result candidates who were
inferior to the petitioner in comparison were selected.
11. Detailing all those aspects and developing the submission in greater depth,
the petitioner has challenged the selection made by the Orissa Public Service
Commission as also the decision of the State Administrative Tribunal dismissing the
petitioner’s application before it.
12. The writ petition is opposed by the State, opposite party No.4 Dr. Ajay
Mishra and the Orissa Public Service Commission, Counter affidavits have been filed
controverting the allegations of the petitioner and justifying the acts done and or
caused to have been done by the Orissa Public Service Commission as also the
decision of the State Administrative Tribunal.
13. Patiently we have heard the lengthy submission made by Mr. R.K.Rath,
learned counsel for the petitioner, Mr. Y. Das for opposite party No.4, a candidate
selected by the Orissa Public Service Commission, Mr.M.R.Mohanty the learned
counsel for the Orissa Public Service Commission and Mr. P.K.Ray, learned Addl.
Government Advocate for the State. We have perused the order of the State
Administrative Tribunal. The judgement of the Tribunal is full of reasons it has
ultimately concluded that in view of the reasons indicated in the decision it was hold
that the procedure adopted by the Orissa Public Service Commission in selecting and
recommending the names of candidates in order of merit for recruitment as Junior
Teachers (Lecturers) in the Medical Colleges of the State was proper and needed no
interference. The Tribunal dismissed the Original Application of the petitioner finding
the same to be devoid of merit.
14. Being aggrieved by and dissatisfied with the decision of the State
Administrative Tribunal, the petitioner has come to this Court.
15. For better appreciation and effective adjudication, this Court directed
Orissa Public Service Commission to produce all the original documents pertaining to
583
the interview, award of marks, selection and recommendation for necessary
appointment. Mr.M.R.Mohanty, in his usual fairness has produced all the relevant
papers before this Court for perusal and appreciation.
16. Mr. Rath has strongly argued on behalf of the writ petitioner challenging the
selection made by the Orissa Public Service Commission vide Annexure-5 as also the
decision of the State Administrative Tribunal mainly on the ground that under the
Orissa Medical Education Service Recruitment Rules, 1979 framed under the proviso
to Article 309 of the Constitution there is a provision for appointment of Junior
Teachers (Lecturer) on ad hoc basis and by virtue of such appointment as per
Annexure-2 the petitioner has been continuing as a Lecturer in Psychiatry . He submits
further that it is of importance to note that the petitioner while working in the
Psychiatry Department since 1985 has been discharging the clinical duties as also the
duties of a Lecturer. Besides, it is submitted that on perusal Annexure-6 series,
Annexure-7 series and Annexure-8, the Court may appreciate that the petitioner had
represented / participated in various international Conferences held at different places,
obtained various awards for his research work at National, Zonal and State levels and
has also to his credit publications for which awards have been made besides requiring
experience. Regard being had to the scope of advance science at the moment, there
should be appreciation of merit of the persons concerned from various angles and
different dimensions. The petitioner, according to Mr.Rath, has made in depth study in
such advance science which would be evident from various annexures to the writ
application. He has further argued that while the Orissa Public Service Commission
invited applications for selection to the posts of Junior Teachers (Lecturers) there were
certain guidelines and he has drawn attention of the Court to sub-rule (3) of rule 4 of
the Orissa Medical Education Service (Recruitment) Rules, 1979 which runs as
follows :-
“(3) In selection of candidates, Commission shall give due regard to the candidate’s academic attainments, experience, aptitude and ability to teach.”
17. He has laid great emphasis on the aspect that the Commission is not free to
make its own procedure. It is under the statutory obligations to follow the norms and
procedure as envisaged in the aforementioned Rules and consistent with the said
statutory rules and/or guidelines the Commission has to function. In the selection
process if any procedure is obtained which is contrary to and inconsistent with the
statutory rules and the guidelines, the entire selection process would be deemed to
vitiated and judicial scrutiny and interference is must. It is not a case of an aggrieved
candidate who has perused this litigation challenging the selection made by exports.
584
Rather, the petitioner has pointed out certain statutory violation in the process of
selection made by the Public Service Commission and the State Administrative
Tribunal having not applied its mind to properly appreciate this aspect, intervention of
the Writ Court is all the more necessary.
18. The second phase of his argument is that in the selection, 100 marks having
been allotted for career and only 10 for interview, best of the doctors could not be
selected even with their best performance in interview as the marks secured in the
H.S.C. and other under-Graduate studies were taken into consideration in evaluating
career.
19. Mr.Rath argues that for making the selection there should be equal
distribution of marks under different heads, even if there is no direction or rule to the
effect. He has drawn attention of the Court to the decision reported in AIR 1971 SC
2303 (A.Poriakaruppan v. state of T.N.). He has also referred to the decision reported
in AIR 1997 SC 2110, in particular para-16 thereof (Rajkumar v. Shakti Raj) and has
submitted that in this case 100 marks had been kept for career and only 10 for
interview. Since no written examination was conducted, it should have been
appropriate to keep 50 marks for interview and 50 marks for the rest so that there
should have been equal distribution of marks for selection.
20. In AIR 1971 SC 2303 (supra) it was held that unit wise distribution of seats
in Medical colleges in Tamil Nadu declared violative of Arts. 14 and 15 as the object
of selecting best candidates on a State-wise basis was not satisfactorily achieved by
this method. The fact that applicants were allowed to apply to any one unit did not
take the scheme out side the mischief of Articles 14 and 15.
21. Mr.Rath has added that the Hon’ble Supreme Court in two recent decisions
have clarified the position that where written examination is not held, question of
allotting smaller percentage of mark for interview would not arise and allotment of
50% marks for interview and 50” for the rest was uphold. The said recent decisions
are AIR 1994 SC 39 (Anaar Ahmad v State of Bihar) and AIR 1994 SC 39 (A.P.State
Financial Corporation v. C.M. Ashok Raju).
22. It is further argued that the statute demands that there should be
consideration on four aspects, such as – academic attainment, experience, aptitude and
ability to teach. To Mr.Rath it would be fallacious and the rule would be nugatory if
on one item 100 marks would be set apart and for the other three items only 10 marks
585
would be there. The Court may appreciate that the Public Service Commission in this
case has failed to comply with the obligations reposed on it to pursue the aspect of
distribution of marks properly on four items. The main thrust of his argument is that
for career marks to be awarded to a candidate marks from the stage of H.S.C
.Examination are considered. He has referred to an affidavit of one export, namely,
Dr.Gopal Chandrakar who has stated that except acting as an Export he has no idea
whether other procedures had been pursued. Mr. Rath has argued that the marks
obtained by the candidates in viva voce should be taken percentwise and thus the
petitioner’s case could not have been ignored and the selection of opposite party No.4
would be erroneous.
23. Mr. Rath has drawn inspiration from the decision reported in AIR 1960 SC
971 (vanguard Fire & Gen. Ins.Co. v. Frasor & Ross) wherein it was held that the
Court has not only to look at the words, but also at the context, the collocation and the
object of such words and interpret the meaning intended to be conveyed by the use of
the words under the circumstances.
24. He has also referred to AIR 1988 SC 2031 (Atma Ram v. Ishwar Singh) to
contend that interpretation of statute should be in furtherance of the object of the
statute. It is stated that the object of the statute in this case is to pick up doctors out of
the best ones equipped in medical science to teach under-graduate and post – graduate
students in Medical Colleges. Hence, interpretation is to add marks secured in subjects
unconnected with Medical Science, then it would defeat the very purpose of the
statute.
25. Mr. Rath has also cited the decision reported in AIR 1997 SC 628 (K.V.
Muthu v.Angamuthu Ammal) wherein it has been held that while interpreting a
definition, it has to be borne in mind that the interpretation placed on it should not
only be not repugnant to the context, it should also be such as would add the
achievement of the purpose which is sought to be served by the Act. The construction
which would defeat or would likely to defeat the purpose of the Act has to be ignored
and not accepted.
26. He has developed his argument drawing attention to a decision of the Apex
Court reported in AIR 1976 SC 1697 (State of Gujarat v. Chaturbhuj Maganlal)
wherein it was held that it is well recognized that where the language of a statutory
provision is susceptible to two interpretations, thereon which promotes the object of
the provision comports best with its purpose and preserves its smooth working should
586
be chosen in preference to other which introduces inconvenience and uncertainly in
the working of the system.
27. He has challenged with greater force submitting that the Public Service
Commission has not appreciated the statutory guidelines and the procedures even
though age old can no longer continue on proper judicial scrutiny.
28. The question of estoppel does not arise so far as statutory guidelines are
concerned. He has referred to the decision reported in AIR 1976 SC 1697 (State of
Gujarat v. Chaturbhuj), AIR 1996 SC 2184 (S. Gopal Reddy v. State of A.P.) and AIR
1982 SC 121 (Chhaganlal v. Narandas) to controvert the case of the Public Service
Commission regarding estoppel against the statute.
29. He has argued with much vigour and force that the judgment of the State
Administrative Tribunal should be struck down, inasmuch as the Tribunal has not
appreciated all the aspects of the case and has not properly appreciated the rules and
more so the facts placed before it. He has concluded that every decision is an authority
for what it decides and not what follows from it logically and a decision is either based
on facts proved or assumed to be proved and has drawn attention of the Court to the
decisions reported in AIR 1985 SC 218 (M/s. Amar Nath Om Prakash v. State of
Punjab) AIR 1990 SC 781 (M/s. Goodyear India Ltd. v. State of Haryana) AIR 1989
SC 1194 (Municipal Corporation of Greater Bombay v. Thukral Anjali) in support of
such preposition.
30. Mr. Y.Das, learned counsel appearing for opposite party No.4 the
successful candidate in the selection by Public Service Commission, supports the
action of the Orissa Public Service Commission as also the decision of the State
Administrative Tribunal. 1 date-chart has been filed by him indicating different events
from 1984. It is submitted that the petitioner joined the State Government service on
3rd of September, 1984 whereas opposite party No.4 completed M.D. in 1991.
Opposite party No.4 joined the State Government service in 1992. The petitioner was
appointed as a Junior Teacher (Lecturer) on ad hoc basis for a period of one year in
1994. The Orissa Public Service Commission advertised for 190 posts of Junior
Teachers (Lecturers) on 2-7-1996. Interview was held for the post of Junior Teacher in
Psychiatry on 26-11-96. The select list was published opposite party No.4 being at
serial No.1 on 3-12-96. There was an order of the State Administrative Tribunal on 9-
12-96 not to revert the ad hoc appointee, the petitioner. The Tribunal ordered on 12-3-
97 that there was no bar in operation of select list and to appoint opposite party No.6, a
587
candidate of S.E.B.C. category. Opposite party No.4 filed and application before the
Tribunal for modification/clarification of the interim orders dated 9-12-96 and 12-3-
97, as above. This Court had passed on order on 9-4-97 in O.J.C.No.5356/97
directing opposite party No.4 to approach the Tribunal for early disposal of
O.A.No.3155/96 filed by the petitioner. Hearing started in C.A.No.3155/96 sometime
in July, 1997 and final order was passed on 2-1-98 dismissing the Original Application
filed by the petitioner and vacating the interim orders. The interim order of status quo
regarding posting was passed by this Court on 16-1-98.
31. It is submitted that after joining as an Assistant Surgeon opp.party No.4
was posted to a Premier Medical College where he had no opportunity to collect the
recommendations and publish various papers. At the entry to service, a mature person
like petitioner cannot be compared at par with a youngster like opposite party No.4.
By making career assessment, the Orissa Public Service Commission adopted a
scientific formula, and in spirit has taken into account the academic performance into
consideration. He has mainly relied upon the decision reported in 1997 (1) ATT (SC)
173 (Secy. (Health) Dept. of Health & F.W. and another v. Dr. Anita Puri and others)
wherein it was held that P.S.C. is an expert body to assess suitability. In absence of
any statutory criteria P.S.C. has the discretion of evolving its mode of evaluation of
merit. Competence and merit of a candidate is adjudged not on the basis of his
qualification but the career throughout his educational curriculum, experience in any
field, general aptitude for job, extra curriculum activities like sports and allied
subjects, personality and other germane factors for assessing suitability are necessary
to be assessed by the expert body. Selection and appointment on the basis of higher
preference qualification was held to be wholly unsustainable. Regarding allotment of
marks by P.S.C. it has been held that there is no statutory rule or any guideline for
evaluation of merit of a candidate and sole authority and discretion is vested in the
Commission. The Commission is required to evolve relative fitness and merit and
select candidate with such evaluation which is not arbitrary unless marks allotted
would be found excessive. In the matter of selection through P.S.C., the exports
having technical experience and high academic qualification in field of selection,
Court should be slow to interfere with its opinion unless main fide is made out and
established. P.S.C.being the expert body while it considers suitability of a candidate
for a specified post after giving due consideration to all the relevant factors, the Court
should not ordinarily interfere with such selection and evaluation.
32. It has been held in the said decision of the Apex Court that in adjudging the
suitability of a person for the post, the expert body like Public Service Commission in
588
the absence of any statutory criteria has the discretion of evolving its made of
evaluation of merit and selection of the candidate. The competence and merit of a
candidate is adjudged not on the basis of the qualification he possess but also taking
into account the other necessary factors like career of the candidate throughout his
educational curriculum experience in any fields in which the selection is going to be
held his general aptitude for the job is to be ascertain in course of interview, extra
curriculum activities like sports and other allied subjects, personality of the candidate
as assessed in the interview and all other germane factors which the expert body
evolves for assessing the suitability of the candidate for the post for which the
selection is going to be held. In this view of the matter, the High Court was found to
be wholly in error in holding that an H.D.S. qualified person like respondent No.l in
that case was on titled to be selected and appointed when the Government indicated in
the advertisement that higher qualification person would get some preference. The
said conclusion of the High Court therefore was held to be wholly unsustainable and
was reversed.
33. Mr. Y.Das submits that further in the case reported in AIR 1997 SC 2110
(Rajkumar v. Shakti Raj) it has been held that the procedure adopted in that case
for selection of candidates was arbitrary and illegal. In the instant case the P.S.C. has
taken note of rule 4(3) and in absence of any written test there was career marking for
the throughout career of candidates. There was nothing wrong on the part of the P.S.C.
For other three aspects, proper interview was held and marks were awarded. It is
submitted that for 190 posts the same procedure was followed and all the candidates
those who were selected have been allowed to join their appointments excepting
opposite party No.4 and with all anxiety he is waiting for the final disposal of the
present case so as to join his appointment.
34. Mr. Y.Das has refused all the arguments made by Mr.Rath that in the present
case there was neither infraction of any statutory rule or guidelines nor is there
anything to show that the selection process was either per verso or vitiated by any
illegality for which the selection should be set aside to the prejudice of opposite party
No.4.
35. Mr. Mohanty, learned counsel appearing for the Public Service Commission
has produced the entire records. We have perused the records presence of the learned
counsel. We find that in fact opposite party No.4 stood in the position of Sl. No.3 but
he topped the list as the candidates at Sl.Nos. 1 and 2 were not considered and he
obtained higher marks in the interview, but after addition of career marks he stood
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much below opposite party No.4 and in between opposite party No.4 and the petitioner
there is more than one candidate. Mr. Mohanty submits that there was no made fide
and P.S.C. acted with all bona fide and for years in absence of written test career
marking is made throughout. After career marking, for all other aspects as indicated in
the statutory rules the interview takes place by a body of experts and unquestionable
personalities who select and recommend names for appointment. The petitioner had
once before appeared for such selection but was unsuccessful. Without any murmur he
again appeared this time and participated in the selection process at all material points
of time. When there was no main fide and while considering the candidature the
experts consistently followed the procedure, the case of the petitioner is misconceived
as was also found by the State Administrative Tribunal with reasons and the Writ
Court should be slow to interfere in the matter upset the decision of the Tribunal.
36. Mr. Mohanty has further submitted that the stops taken by P.S.C. were quite
without any infirmity and it acted genuinely and bona fide and there is nothing wrong
from any angle of vision.
37. Mr. P.K.Ray, learned Addl. Govt. Advocate has supported the case of opposite
party No.4 as also the decision of the State Administrative Tribunal as also the
recommendation of the P.S.C.
38. Patiently we have considered all the points raised on behalf of the petitioner,
on behalf of opposite party No.4, on behalf of the Public Service Commission as also
the State.
39. We remember the arguments of Mr. Rath that while there would he short
listing in absence of written test, this short listing should not be taken for granted to be
a part and parcel of the selection process and there should not be 100 marks for career
marking and 10 marks for all the other there aspects by interview.
40. With all anxiousness we have considered the submission of Mr. Rath and
checked up the statute in between the lines. Though it is for the purpose of selection
the P.S.C. will take into consideration the four aspects for evaluation, yet there is no
guidelines as to on which aspect what mark should be given. If the Public Service
Commission with its can modality for years together has been following the procedure
that in absence of any written examination career marking would be made and with
this process the interview would take place for the other three aspects and the marks
obtained in the interview would to added to the career mark, We do not find that there
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is infraction of any statutory guide lines or violation of any statute. True it is that in
the advertisement there was indication that in the absence of written examination
career marking would be there by short listing the candidates, but that does not mean
that for the purpose of selection career mark would be overlooked or that there should
be distribution of marks quality for the four aspects and in absence thereof the
selection in the instant case would be deemed to be vitiated for which annexure –5
should be quashed and consequently the judgment of the tribunal should be upset.
41. With much deliberation on this aspect and regard being had to the facts of the
present case in greater depth and details, we do not find that it would be prudent on the
part of the writ court to interfere with the experts view in absence of any allegation as
to mala fide or extraneous. The expert committee with its experience has made the
selection and we are not inclined to interfere in the matter.
42. For the foregoing reasons, although we appreciate the arguments advanced by
Mr. RK Rath, learned counsel for the petitioner, we are afraid we cannot grant the
relief as prayed for in the writ petition. We dismiss the writ petition and vacate all the
interim orders. There will be no order as to costs.
***
591
O.J.C. No.4429/98 D.D. 8.4.99
The Hon'ble Acting Chief Justice Mr.A.Pasayat
The Hon'ble Mr. Justice P.C.Naik Bidyadhar Palai – Petitioner -vs- Orissa P.S.C. & Ors. – Opposite parties
Age relaxation
Recruitment to the post of Assistant Engineer (Technical) - Upper age limit 32 years and benefit of age relaxation by 5 years given to SC/ST/Ex-Servicemen and Women candidates and 3 years to OBC candidates; 5 years to in-service candidates. Petitioner – In-service candidate who was 39 years as on the prescribed date claimed benefit of 3 years as OBC besides 5 years as in-service candidate. Held – Petitioner is entitled to benefit of relaxation of 5 years as in-service candidate only.
JUDGMENT
In this writ application judgment of the Orissa Administrative Tribunal,
Cuttack Bench (in short the ‘Tribunal’) dated 15.1.1999 in O. A. No. 1673 (C) of
1996 is under challenge.
2. Background facts leading to filing of the applications is as follows:
Petitioner had moved the Tribunal for a direction to the State of Orissa,
Department of Commerce and Transport and the Director of Printing, Stationery and
Publication to consider his case for appointment to the post of Assistant Director
(Technical) as a departmental candidate by allowing him age relaxation of three years
as available to candidate belonging to Socially and Economically Backward Classes
(in short ‘OBC’) and five years in respect of candidate serving under the State
Government. The Tribunal held that the plea was not acceptable and dismissed the
original application.
3. Petitioner’s stand before the Tribunal which is reiterated before us is as follows
:
He was a candidate to the post of Assistant Director (Technical) in the
Directorate of Printing, Stationery and Publication, Orissa in Class II service for which
an advertisement was issued by the Orissa Public Service Commission (in short
‘OPSC’). Petitioner belongs to SEBC as evident form the caste certificate, According
to the advertisement a candidate for the post should not be below 21 years and above
33 years as on 1.1.1994. The upper age limit is relaxable upto 5 years in case of
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SC/ST/Ex-servicemen and Women candidate and 3 years in case of other backward
class as per rules. The advertisement also stipulates that the upper age limit is
relaxable upto 5 years in respect of candidates serving under Government. The
petitioner is a departmental candidate working as Copy Holder in the Directorate of
Printing, Stationery and Publication. Had he appeared as a candidate from the open
market he would have been entitled to relaxation of upper age limits by 3 years. Since
he is a departmental candidate, the upper age limit can be relaxed for further 5 years.
His contention is that he is entitled to concession both as a Member of SEBC and as a
departmental candidate. In other words, according to him, his upper age limit should
be relaxed by 6 years. If this contention has been accepted, the petitioner who was 39
years old as on 23.5.1996 when the original application before the Tribunal was filed
would have been eligible to compete for the post but allowing him extension of age by
5 years, he was not allowed to take part in the selection. Prayer in the original
application was to quash the impugned letter/order issued by OPEC rejecting his
application as age barred and to direct it to call the petitioner for interview on
30.5.1996 for selection on merit. OPSC took the stand that it had sought for
clarification from the General Administrative Department on the petitioner’s claim
that he was entitled to the relaxations as claimed. The G.A Department in its reply
dated 21.3.1996 clarified that according to rule 9(2) (C) of the Orissa Printing and
Stationery Service (State Service Class I and Class II) Rules (in short ‘Rules’) he is
entitled to get relaxation of age upto 5years. The said rule provides that for a direct
recruitment, a candidate must be above 21 years and below 32 years of age on the first
January of the recruitment year, and the upper age limit shall be relaxed by 5years in
respect of the candidate serving in the Government. Thus, as a departmental candidate
the petitioner is entitled to relaxation of age upto 5 years and since he was more than
37 years old as on 1.1.1994 he was considered age barred for taking part in the
recruitment test. The Tribunal did not accept the stand of the petitioner and as a
foretasted rejected the application
4. Learned counsel for petitioner submitted that if a comparison is made between
two advertisements i.e. one issued by the OPSC in the instant case and the other issued
by the Department of Telecommunications, Orissa Telecom circle, Bhubaneswar,
Government of India, for recruitment in another case, the fallacy is the reasoning of
the Tribunal would be apparent. Reference is also made to an advertisement vide no
140-D which was issued in February, 1998 for the post of Technical Officer in Class II
of State Service. According to it, a candidate must not be over 32 years and below 21
years as on 1st August 1997. The upper age limit is relaxable by three years for
candidates belonging to Scheduled Castes, Scheduled Tribes, women and eligible Ex-
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servicemen. The upper age limit in respect of candidates working under State
Government is relaxable upto to maximum limit of 45 years. By analogy it is stated by
learned counsel for petitioner that the Government servants belonging to reserved
category are to get 5 years of relaxation of age over and above that generally
applicable to all government servants.
5. The question as to what would be the age limit is a policy of the competent
authority and unless the same is irrational, the High Court whole exercising
jurisdiction under Articles 226 and 227 of the Constitution cannot interfere. So far as
the advertisement no. 140-D which was issued in February 1999 is concerned there is
nothing in the same which support the stand of the petitioner. In fact in the
advertisement itself, no distinction is made between government servants belonging to
any of the categories and all Government servants below 45 years have been allowed
to participate. The petitioner’s stand is based on the supposition that particular limit of
45 years has been fixed by adding eight years to 37 years of age limit, which is the
upper age limit, according to him for entry into service. Emphasis has also been laid
on the Employment Notice issued by the Department of Telecommunications, Orissa
Telecom Circle, Government of India, referred to above. A close look at the
advertisement shows that relaxation of age is not available to all departmental
candidates but only to those who are eligible to appear in the Departmental
Examination for recruitment against departmental quota vacancies. Even otherwise
merely because in another case or other cases there is any prescription in the
advertisement, which is not there in the advertisement under consideration, that cannot
be applied, particularly when a set of statutory rules govern the recruitment i.e. the
Rules referred to above. The Rules specifically provides that a departmental candidate
is to get a concession for five years. That being the position, there is no scope for
granting any further relaxation in the absence of any specific provision in the Rules.
The conclusions of the Tribunal do not suffer from any infirmity to warrant
interference by this Court.
The writ application fails and is dismissed but in the circumstances without
any order as to costs.
***
594
O.J.C. No.14619/98 D.D. 23.6.2000
The Hon'ble Mr. Justice P.K.Mohanty
The Hon'ble Mr. Justice CH P.K. Misra Dr. Rajat Mohanty – Petitioner -vs- Orissa P.S.C. & Others – Opp. Parties Held – Short listing of candidates for recruitment to the post of Junior Teacher (Lecturer) in Obstetrics and Gynecology Services of the State on the basis of performance in academic career of candidates at H.S.C., H.S.S.C. (+2) and M.B.B.S. Examinations as per Recruitment Rules is valid. Cases referred: 1. JT 1990(2) S.C. 264 Direct Recruit Class-II Engineering Officers Association & Ors. V. State of Maharashtra & Ors. 2. 1997(1) ATT (S.C.) 178 Secretary (Health) Department of Health & Family Welfare & Anr. V. Dr. Anita puri & Ors. 3. 1998(II) O.L.R. 502 Dr.Tophan Pati v. State of Orissa 4. JT 1999 (7) S.C. 576 Shri L.Chandrakishore Singh v. State of Manipur & Ors. 5. JT 1999(8) S.C. 578 Ajit Kumar Rath v. State of Orissa & Ors.
JUDGEMENT
The petitioner calls in question the order of the State Administrative Tribunal,
dismissing his Original Application wherein he had challenged the selection of
opp.parties 2 and 4 to the post of Junior Teacher (Lecturer) in obstetrics and
Gynaecology in the Medical Colleges of the State, pursuant to the advertisement no.7
of 1996-97 and non-consideration of the petitioner’s case by the Orissa Public Service
Commission, hereinafter called as “O.P.S.C.”.
2. The petitioner’s case in brief is that he was qualified and was eligible for
selection and appointment as Junior Teacher (Lecturer) in Obstetrics and Gynecology
in terms of the Orissa Medical Service (Recruitment) Rules, 1979 and the
Advertisement No.7 of 1996-97 issued by the O.P.S.C. by adopting an illegal method
of short-listing in the process of selection in an arbitrary manner eliminated the
eligible candidates like the opp. Parties 2 and 4 in the first phase of selection.
According to the petitioner, the eligible qualification for selection for the post of
lecturer was (a) one should be an Asst.Surgeon under the State Government, State
Government undertakings (on deputation as there is no post of Asst.Surgeon in the
Government undertakings (b) he should have atleast one year experience as such and
(c) he should hold a P.G. Degree in the concerned discipline. The post of Assistant
Surgeon is a cadre post in Class-II of Orissa Medical and Health Services carrying a
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scale of Rs.2000 – 3500/-, which was subsequently revised to Rs.6500 – 10,500/- and
the recruitment to such post was to be made by the State Government under the 1941
Recruitment Rules. The post of Lecturer is a cadre post in Class-II of the Orissa
Medical Education Services carrying a scale of Rs.2,200/- – 4,000/-, which was
subsequently revised to Rs.8,000 – 13,500/- and the recruitment to such post is
governed by the 1979 Recruitment Rules. The petitioner claims that only inservice
Doctors having Post-Graduate Degree and one year of experience were eligible to hold
the post, since the scale attached to the post of Lecturer is higher than that of the post
of Assistant Surgeon.
3. According to the petitioner, a reading of Rule 4(4) of the 1979 Recruitment
Rules with sub-paragraph (i) of paragraph –1 of the advertisement, in case of non-
availability of Assistant Surgeons, the appointment can be made by direct recruitment,
if necessary. The petitioner was qualified and eligible also in the first phase of
selection since he was an Assistant Surgeon of the State Government with effect from
15.2.1991 and thus, had an experience of more than one year as an Assistant Surgeon
as on 31.8.1996 and he possessed a post Graduate Degree in Obstetrics and
Gynecology from Sambalpur University. But the opp.party no.1 O.P.S.C. illegally did
not consider his case and he was arbitrarily not called for the interview. On the other
hand, even though opp.parties 2 and 4, who are appointed to the post of Assistant
Surgeon only on 20.6.1996 and had possessed experience of only two months and 11
days, were considered and appointed to the said post, for which he had challenged the
selection before the learned State Administrative Tribunal, but the Tribunal had on an
erroneous consideration, dismissed the case, and hence the present writ application.
4. The opp.party no.1 has filed a comprehensive counter affidavit controverting
the assertions and the allegations made in the writ application. It is the case of
opp.parties that on the basis of the requisition and draft advertisement received from
the Government of Orissa in Health Department, the O.P.S.C. issued Advertisement
no. 7 of 1996-97 for filling up of 190 posts of Junior Teachers in different disciplines
including 5 posts of Junior Teachers in the discipline of Obstretrics and Gynecology,
out of which two posts were reserved for Scheduled caste and Scheduled tribe and
remaining 31 were kept for unreserved category. The advertisement also
contemplated that 1/3rd of the vacancies in each of the cadres were reserved for
women candidates and where adequate number of eligible women candidates were not
available, the remaining vacancies are to be filled up by male candidates.
596
Opp. party no.1 has specifically asserted that in paragraph 9 (v) of the
advertisement in question, it was stipulated that where the number of applications
were received in respect of that advertisement is large and it is not convenient for the
commission for interviewing all those candidates, the Commission may restrict the
number of candidates for interview for reasonable limit by making preliminary
selection, either on the basis of evaluation of their career or by conducting a
preliminary written tests. 104 candidates had applied for the discipline Obstetrics and
Gynecology as against the advertised vacancies of five, the Commission having found
that neither it is convenient or necessary to interview all those candidates, in terms of
paragraph 9 (v) of the Advertisement, a preliminary selection was made to short-list
the candidates to be called for the interview/viva voce list. The short-listing was done
on the basis of evaluation of the academic career of the candidates on the basis of the
performance at the H.S.C., H.S.S.C. (+2) and M.B.B.S. examinations. The average of
marks (worked out in percentage terms) secured by the candidates was taken to
determine their relative ranking for the purpose of short-listing. This, according to the
opp.party no 1, was done in accordance with the established practice of the
Commission for career assessment of the candidates for different posts and services
followed over a long period of time. On short-listing of those candidates, only 18
candidates from different categories were called to the viva voce test. Separate list of
scheduled caste and scheduled tribe candidates was prepared for being called to the
interview in view of reservation. It is asserted that the last general women candidate,
who was called to the interview had secured 65.850% whereas the petitioner secured
53.935% of marks. Between the petitioner and the last general woman candidate
called to the interview, there are 55 other candidates, who had secured higher
percentage of marks than the applicant. The interview was held on 8.1.97, 9.1.97 and
29.1.97 and after completion of the recruitment process, the O.P.S.C., submitted their
recommendation to the State Government by their letter dated 29.1.1997.
5. With regard to the experience of opp.party no.2 Dr.Subhara Ghosh and
opp.party no 4 Dr.Kirtirekha Mohapatra, it has been asserted that they had more than
one year of experience as Assistant Surgeon and they had also furnished such
certificate from the Director of Health Services as required under the Rules. It is
submitted that the posts of Assistant Surgeon and that of Junior Lecturer are two
separate and distinct cadres. One is under the Director of Medical Education and
Training whereas the other under the Director of Health Services and the pay scale of
both the posts are separate. A Junior Lecturer is regulated by the U.G.C. scale of pay
and the Assistant Surgeon is paid a normal class –II officer of the State Government,
in as much as the recruitment to the Junior Lecturer is by way of direct recruitment in
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terms of the Recruitment Rules and is not a promotion from the post of Assistant
Surgeon.
6. The main thrust of the argument of Sri Bijayananda Das, learned counsel for
the petitioner is that the action of opp.party no.1, Orissa Public Service Commission in
short listing the candidates and the method of such short-listing was arbitrary, illegal
and hit by the provisions of Article 16 and 309 of the Constitution of India, so far as it
has eliminated the eligible candidates like the petitioner at the threshold and that aided
for selection of ineligible candidates like opp.parties 2 and 4 in the first phase of
selection. Secondly, opp.parties 2 and 4 having experience of less than one year as
Assistant Surgeon, they lacked the prescribed experience of one year in terms of the
Recruitment Rules, 1979 and therefore were not eligible to be called to the interview
and being selected, but illegally not only they has been called to the interview, but
they have also been selected and appointed in the post and therefore their selection and
appointment has to be quashed. The learned counsel has submitted that the petitioner
was qualified and had the requisite qualification and as such, ought to have been called
to the interview, but the opp.party no.1 by adopting an illegal method of short-listing,
has deprived him from selection and consequent appointment.
7. Now coming to the first contention of the learned counsel as to the legality of
the method of short-listing deployed by opp.party no.1 in the process of selection, let
us consider the criteria of selection as stipulated in the Orissa Medical Education
Service (Recruitment) Rules, 1979 (hereinafter called as O.M.E.S. Rules, 1979 may be
quoted hereunder:
“4. Appointment of Lecturer – (1) Appointment of Junior teaching
posts in the service shall be made by selection from amongst the Assistant Surgeons under the State Government or State Government undertakings with at least one year’s experience as such through the Public Service Commission which shall invite applications and process them:
Provided that the recruitment may also be made from amongst the Lecturers for the junior teaching posts, in any other speciality or higher speciality subject to the condition that seniority in the new speciality or higher speciality, as the case may be, shall be determined from the date of appointing in the new discipline in accordance with the placement given by the Commission and accepted by the Government.
(2) No person shall be eligible to be appointed as a Lecturer unless he has acquired a post-Graduate Degree in the concerned speciality or any other equivalent degree or qualification prescribed by the Council.
598
(3) In selection of candidates, Commission shall give due regard to the candidate’s academic attainments, experience, aptitude and ability to teach.
(4) If candidates with the prescribed qualifications are not available or appointment cannot be made in the manner prescribed in Sub-Rule (1), appointments may be made by direct recruitment through the Commission, if necessary, in relaxation of the prescribed qualifications. (5) The Lecturers shall perform such duties as are specified in
the schedule to these rules and any other duties as may be specified
by Government from time to time by general or special order.”
8. In terms of the aforesaid Rules, the Public service Commission by its
advertisement No.7 of 1996-97 invited applications in the prescribed form for filling
up the post of Lecturers in different faculties including Obstetrics and Gynaecology.
Clause 9 of the Advertisement in sub-clause (v) reads thus:
“9. Other conditions/Information/Instructions: (i) xx xx xx (ii) xx xx xx (iii) xx xx xx (iv) xx xx xx
(v) Where the number of applications received in response to an advertisement is large with reference to the number of vacancies advertised and it may not be convenient for the Commission to interview all the candidates, the Commission
may restrict the number of candidates for interview to reasonable limit by making preliminary selection either on the basis of evaluation of their career or by conducting a preliminary written test.”
Thus, it is abundantly clear that the O.P.S.C indicated in the advertisement
itself that in case of the number of applicants is large, with reference to the number of
vacancy advertised, the Commission may restrict the number of candidates for
interview to a reasonable limit by making preliminary selection either on the basis of
evaluation of their career or by conduction a preliminary written test.
9. Undisputedly, the O.P.S.C advertised for five vacancies in the discipline of
obstetrics and gynecology for which petitioner had also applied and 104 applications
were received. Out of these five vacancies, two posts were reserved for scheduled
caste and scheduled tribe candidates and three were unreserved. It is the stand of the
O.P.S.C. that in terms of clause 9(v) of the advertisement, a preliminary selection was
made to short list the candidates to be called for the interview/viva voce test. The short
list was done on the basis of the evaluation of the academic career of the candidates
599
beginning from the stage of H.S.C , H.S.S.C. (+2) and M.B.B.S examinations. The
average of marks secured by the candidates were taken to determine their relative
ranking for the purpose of short-listing and this was done in accordance with the
established practice of the Commission for career assessment of the candidates for
different posts and services followed for a long period of time. It is asserted by the
O.P.S.C. that the last general (woman) candidate, who was called to the interview has
secured 65.850% of marks, whereas the petitioner secured 54.935%. Between the
petitioner and the last general (woman) candidate called to the interview, there were
55 other candidates, who were secured higher percentage of the marks than the
applicant and therefore, the petitioner did not have a chance, even if two of the
candidates namely opp. Parties 2 and 4 were eliminated from the process.
10. If the number of candidates for a post is large, the selecting authority is not
prohibited from short-listing the candidates by a proper procedure of eliminating the
less meritorious candidates. This question directly came up for consideration of this
court in case of Dr. Tophan Pati v State of Orissa, 1998 (II) O. L. R. 502. The very
same advertisement no. 7 of 1996-97 issued b the O. P. S. C which is the subject
matter in the present writ application was under consideration with regard to the
selection in the faculty of Psychiatry. This court held that if the Public Service
Commission with its own modality of years together has been following the procedure
that in absence of the written examination, career marking would be made and with
this process, the interview would take place for the other three aspects and the marks
obtained in the interview will be added to the career mark, there is no infraction of any
statutory guidelines or violation of any statute. The Court took note of the decision in
the case of Secretary (Health) Department of Health and Family Welfare and another v
Dr. Anita Puri and others 1997 (i) ATT (S. C) 178 of the apex court, which held that
the competent to assess the suitability and in absence of any statutory criteria, it has
any discretion evolving its mode of evaluation of merit and selection of the candidates.
The competence and merit of a candidate is adjudged not on the basis of the
qualification he possess but also taking into account the other necessary factors like
career of the candidate throughout his educational curriculum, experience in the field
in which the selection is going to be held, his aptitude for showing extra-curricular
activities, personalities and other germane factors which the expert body evolves for
assessing suitability are necessary to be assessed by the expert body. In that view of
the matter, the contention of the learned counsel with regard to the illegality
committed by the Public Service Commission in short-listing the candidates and the
method adopted for short-listing has to be rejected. If the Public Service Commission
has evolved a method of short-listing the candidates on the basis of the career and on
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the assessment of the career, if it has been found that the petitioner is much below the
persons called for the interview, such action cannot be faulted. The contention of the
learned counsel for the petitioner that the academic attainment of the candidate from
the very beginning to the date they filed the application for the post, ought to have
been taken and that the academic attainment till M. B. B. S Degree only could not
have been taken, cannot be accepted. It must be borne in mind that at the Post
Graduate Medical Examination, no class or grade is assigned to a candidate and as
such had the mark in the Post Graduate been added, then it would have been equal for
all the candidates there being no grading like 1st, 2nd or 3rd class or any other
classification thereof. In that view of the matter, we do not find any illegality in the
action of the O. P. S. C in short-listing the candidates on the basis of the academic
attainment.
11. So far as the contention of the learned counsel for the petitioner with regard to
ineligibility of the opp parties 2 and 4 on the ground of lack of service experience of
one year in terms of the Recruitment Rules, it is not in dispute that a candidate in order
to be eligible for consideration of the post of a Lecturer should have at least one year
experience as an Assistant Surgeon. It is the submission of the learned counsel that the
opp party no 2 Dr. Subhra Ghosh was appointed as an Assistant Surgeon on adhoc
basis and posted to a P. H. C on 16.11.1994 and there was technical breaks of one day
between the spells of appointment and she was appointed on regular basis on
20.6.1996 on the recommendation of P. S. S and therefore on the date of receipt of the
application i.e. on 30.4.1996 se did not have experience of one year as Assistant
Surgeon. Similarly, Dr. Kirtirekha Mohapatra (opp party no. 4) was Assistant Surgeon
an adhoc basis from 30.12.1993 to 2.7.1996 against a post of L. T. R. M. O in the
District Headquarters Hospital, Bhawanipatna and regularly appointed on the
recommendation of the P. S. C. on 2.7.1996 and thus she could not have the requisite
experience by 31.8.1996 from the date she was appointed regularly on the
recommendation of the P. S. C. The learned counsel emphatically submits that the
appointment of adhoc Surgeon in unknown to the 1941 Orissa Medical Service
Recruitment Rules of the State Government of recruitment of Assistant Surgeon and
therefore since the opp parties 2 and 4 were admitted held adhoc appointments which
are fortuitous and stop gap appointment dehors the corresponding 1941 Orissa
Medical Service Recruitment rules of the State government, the period of such
appointment cannot be reckoned towards their eligibility of one year appointment as
Assistant Surgeon as required under Rule 4 (1) of 1979 Recruitment Rules. The
learned Tribunal while considering this aspect of the matter, took note of the Orissa
Public Service Commission (Limitation and Function) Regulations, which
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contemplates an appointment to any such post without consultation with the Public
Service Commission not exceeding one year and therefore rejected the contention of
the petitioner that such appointment should not be considered for the purpose of
experience of one year as contemplated under the Rules. The Tribunal has rightly
rejected such plea. It is well established that pending selection by the Public Service
Commission, the State Government is not precluded or prohibited from making any
appointment to a post on adhoc basis and a person appointed on adhoc basis also
functions in the a post as a regularly appointed Assistant surgeons and once the
appointment is regularized by the recommendation of the Public Service Commission,
the period served on adhoc basis has to be reckoned fro the purpose of experience. The
Tribunal has also taken note of the decision of the Government in Health and Family
Welfare Department in the Resolution dated 9.7.1992, wherein the break periods are
condoned in respect of the adhoc employees. A reference may be made to the case in
Ajit Kumar Rath v State of Orissa and others, JT 1999 (8) s. C. 578.In that case, the
Hon’ble Apex Court, following the constitutional bench decision in direct Recruit
Class – II Engineering Officers Association and others V State of Maharashtra and
others, JT 1990 (2) S. C 264 held that of the initial appointment is not made by
following the procedure laid down by Rules, but the appointee is continued in the post
uninterruptedly till the regularization of the services in accordance with the Rules, the
period of officiating services will be counted for the purpose of seniority and
experience. In Shri. L. Chandrakishore Singh v State of Manipur and others JT 1999
(7) S. C. 576, the Apex Court held that the seniority itself based upon length of
services is an acquired right of an employee which entitled him to be considered for
the further promotion. The length of service may be on the basis of the difference of
continuous officiating or on the basis of the difference of substantive appointment in
the cadre or grade or service which may be reckoned from the date of confirmation on
the basis of regularization. Even in case of probation or officiating appointments,
which are followed by a confirmation, unless a contrary rule is shown, the services
rendered on officiating appointment or on probation cannot be ignored for recruitment
and for determining his place in the seniority list, where first appointment is made by
not following the prescribed procedure and such appointee is approved later on, the
approval would mean his confirmation by the authority shall relate back to the date on
which his appointment was made and the entire service will have to be computed in
reckoning the seniority according to the length of continuous officiating. It is admitted
position that opp party no 2 Dr. Subhra Ghosh was appointed as Assistant Surgeon on
ahoc basis and posted to P. H. C on 16.11.1994 and she continued on adhoc basis with
technical breaks on one day between the spells of appointments and was appointed on
regular basis on the recommendation of the Public Service Commission on 20.6.1996.
602
Dr. Kirtirekha Mohapatra (O. P.No. 4) was appointed as an Assistant Surgeon on
adhoc basis on 30.12.1993 in the District Headquarters Hospital, Bhawanipatna and
regularly appointed on recommendation of the Public Service Commission on
2.7.1996 and therefore, there is no legal impediment in counting the period of adhoc
services for the purpose of experience in terms of Rule 4 (1) of the 1979 Recruitment
Rules and therefore the view taken by the Tribunal that the said opposite parties had
the requisite experience of one year as an Assistant surgeon to be considered for being
appointed as Junior Teacher (Lecturer) under the Orissa Medical Education Service
(Recruitment) Rules, 1979 cannot be faulted.
12. Coming to the case of petitioner, it is not disputed that he had the requisite
qualification and experience in terms of Advertisement No. 7 of 1996-97 and the 1979
Recruitment Rules more specifically, rule 4 (1). But the question is whether he has
been rightly denied the right of facing the interview/viva voce by the Public Service
Commission. Nothing has been brought on record to shown that on the basis of the
career assessment mark, the petitioner obtained or would have obtained more 54.935%
of marks nor it has been shown that the last general (woman) candidate, who was
called to the interview had secured less than 65.850% of marks and there were 55
other candidates who had secured higher percentage of marks than the applicant at the
career assessment marks by the P. S. C. If the person having secured 65.850% of
marks on the career assessment were called to the interview and the petitioner’s name
did not find place in the short-list so prepared by the Commission, action of the
Commission cannot be faulted for having not called the petitioner to the interview. A
contention has been made that the recruitment to the post of Junior Lecturer is a
promotion from the rank of Assistant Surgeon and as such, the petitioner ought to have
been considered in that line. At the outset, the contention has to be rejected. The
appointments to the post of Lecturers are made under the Orissa Medical Education
Service (Recruitment) Rules, 1979 and are regulated by the U. G. C Scales of pay as
applicable to the Lecturers of general colleges, where as an Assistant Surgeon is
allowed pay scale of normal State Government class – II officers. The recruitment to
the Junior Lecturer is a direct recruitment by selection and therefore cannot be
construed as a promotional post from the rank of Assistant Surgeon in terms of the
1979 Recruitment Rules. At this stage, a reference may be made to Rule 4 (1)of the
1979 rules which has been extensively quoted in the earlier paragraph. The
appointment of Lecturer (Junior Teacher) post in the service shall be made by
selection from amongst the Assistant Surgeon under the State government
undertakings with at least one year’s experience as such through the Public Service
Commission shall invite application and process them. Under sub-rule (4) if
603
candidates with prescribed qualification are not available or appointment cannot be
made in the manner in sub-rules (1) the appointment may be made by direct
recruitment through the Commission, if necessary by relaxation of the prescribed
qualification. Since the candidates with the prescribed qualification are available in
plenty, there is no occasion for restoring to the recruitment under Sub Rule (4). Thus,
the contention of the learned counsel is misconceived and has to be rejected.
13. In that view of the matter, we do not find any merit in the writ application to
interfere with the impugned order of the learned Tribunal. Accordingly, the writ
application is dismissed, but in the circumstances there shall be no order as to cost.
***
604
O.J.C. 8485/2000 D.D. 8.11.2001
The Hon'ble Acting Chief Justice Shri R.K.Patra
The Hon'ble Shri Justice CH P.K.Misra State of Orissa & Anr. – Petitioners -vs- Gatikrushna Satapathy & Anr. – Opp. Parties Classification of vacancies Recruitment to 399 posts in Orissa Civil Services – Reservation of five number of posts for Ex-Servicemen – Petitioner an Ex-serviceman challenged before the Administrative Tribunal contending that atleast 12 posts should have been reserved for Ex-Servicemen at 3% of the total number of posts – Tribunal allowed the application – In this Writ Petition filed by the State, the High Court has quashed the order of the Tribunal by observing as under:
"It may be noted that unless there are 33 vacancies arising in a year, one post cannot be reserved for ex-serviceman. Calculating in this process, the number of vacancies to be reserved for the ex-servicemen at the maximum could have been 7 out of total number of 399 vacancies advertised to be filled up. The Tribunal has clearly erred in law in assuming that 12 vacancies should be reserved for the ex-servicemen."
JUDGMENT
This writ petition at the instance of the state government is directed against the
common order dated 14.02.2000 passed by the Orissa Administrative Tribunal,
Cuttack bench Cuttack in O.A.No.415 (C) of 1998 requiring it to fill up the posts of
O.A.S Class- II by giving appointment to four persons after retrenching the junior
most hands.
2. The opposite party No.1 filed the aforesaid O.A. No.415 (C) of 1998
challenging fixation of five numbers of vacancies reserved for ex-serviceman category
out of 399 vacancies for Orissa civil services. According to him, he is an ex-service
man and as such, at least 3 per cent of 400 vacancies (i.e., 12 vacancies) should have
been reserved for ex-serviceman in view of the Orissa Ex-Serviceman (Recruitment to
State Civil Services and Posts) Rules, 1985.
3. Facts in brief are necessary to be noted for the purpose of decision. The Orissa
Public Service Commission made an advertisement on 01-01-1997 for combined
competitive recruitment examination for the following services.
Category No.1: 1. Orissa Administrative Services Class-II 2. Orissa Finance Services Class- II
605
3. Orissa Employment Services, Class –II 4. Orissa Co-operative services Class-II Category No2: 1.Sub- registrars 2. Orissa Settlement and consolidation Services.
Admittedly, there were no recruitment examination for the year 1994, 1995 and 1996
and there were 32 unfilled vacancies of the previous years. The General
Administration Department being a nodal department to monitor vacancies of different
administrative departments. On requisitions to the Orissa Public Service Commission
on 30-09-1996 relating to the vacancies for the year 1994,1995 and 1996 totalling 367
and on 27-11-1996 relating to 32 split over vacancies, such as Revenue Department-29
(O.A.S. Class-II-24 and OSCS-5) and Finance Department-3 relating to the unfilled
vacancies of previous years. Thus in total it comes to approximately 400.
Rule 3 of the Orissa Reservation of vacancies in posts and services (scheduled
Caste and Scheduled Tribes) Rules, 1976 provides for ‘model roster i.e., the reserve
points in 100 point roster (SC 15% and ST 23%). Rule-4 of the Orissa Ex-servicemen
(Recruitment to State Civil Services and Posts) Rules, 1985 provides that 3% of the
vacancies arising in a year in different categories of class-II and Class- III posts are to
be filled up by direct recruitment being reserved for ex-servicemen as per the roster
point shown in the schedule. In the schedule, the reserve points for ex-servicemen
were inter-linked with SC reservation points in the 100 point roster. Conjoint reading
of the aforesaid Rules would show that the vacancies arising in different services in a
particular year are to be taken as the basis for calculating 3 per cent vacancies to be
reserved for ex-servicemen and this quota is required to be taken out from the category
of the selected candidates according to the category to which the candidate belongs.
From the vacancies in different categories of posts for ex-servicemen for the year
1994,1995 and 1996 the total reservation for ex-servicemen would come to 7. This
would be evident from the following chart.
Sl No.
Category of the post
Year Total No.of Vacancies
3% for Ex- Servicemen
1 O.A.S Class-II 1994 73 2.19 or 2
2 O.A.S Class-II 1995 76 2.28 or 2
3 O.A.S Class-II 1996 58 1.74 or 2
4 O.F.S Class- II 1994 18 0.54 or nil
5 -do- 1995 40 1.20 or 1
6 -do- 1996 24 0.72 or nil
7 O.C.S. Class - II 1994 Nil Nil
606
8 -do- 1995 3 0.09 or nil
9 -do- 1996 6 0.18 or nil
10 O.E.S Class- II 1994 1 0.03 or nil
11 -do- 1995 3 0.09 or nil
12 -do- 1996 4 0.12 or nil
13 Sub-Registrar 1994 2 0.06 or nil
14 -do- 1995 10 0.30 or nil
15 -do- 1996 1 0.03 or nil
16 C.S.C.S 1994 15 0.45 or nil
17 -do- 1995 20 0.60 or nil
18 -do- 1996 13 0.34 or nil
Total reservation for ex-servicemen 07
It may be noted that unless there are 33 vacancies arising in a year, one post
cannot be reserved for ex-servicemen. Calculating in this process, the number of
vacancies to be reserved for the ex-servicemen at the maximum could have been 7 out
of total number of 399 vacancies advertised to be filled up. The tribunal has clearly
erred in law in assuming that 12 vacancies should be reserved for the ex-servicemen.
4. For the reasons aforesaid, the impugned order of the tribunal at Annexure- 8
cannot be supported in law which is accordingly quashed. O.A.No.415(C) of 1998
thus stands rejected.
The writ petition is allowed. No costs.
***
607
O.J.C.No.2336/2002 D.D. 6.5.2002
The Hon'ble Chief Justice P.K.Balasubramanyan
The Hon'ble Mr. Justice A.S.Naidu Hrusikesh Sahu & 16 Ors – Petitioners -vs- The Secretary, Orissa P.S.C. – Opp. Party
Scrutiny of answer scripts by candidates
Candidates have no right to have access to their answer scripts for checking the valuation - There is no Rule or Regulation providing for the same.
JUDGEMENT
The prayer in this writ petition is for the issue of a writ of mandamus directing
the opp. Parties to allow the petitioners, who were candidates in Orissa Civil Service
Examination Preliminary, 2000, to have access to their answer scripts for checking the
valuation. No Rule or Regulation providing for such access is brought to our notice.
As far as we can see, there is no statutory or constitutional right inhering in the
examinees to have access to their answer papers after the Examination is over.
Allowing the examinees to have a right to inspect the answer scripts would lead to an
intolerable situation. In exceptional cases, the Court interferes when facts justifying
interference are made available with supporting materials. In the case on hand, we do
not see any such material produced before us justifying our interference. This Court
does not feel it necessary or proper to direct revaluation or scrutiny of the answer
papers merely because some have come forward with a complaint.
We have come across a number of cases of this nature complaining vaguely
that the answer papers have not been properly valued. The Orissa Public Service
Commission and the State of Orissa would do well to ensure that the conduct of
examinations and valuation of papers are done in an organized manner leaving no
room for complaint either of any irregularity in conducting the examination or in
valuation of answer papers.
We dismiss this writ petition with the above observation. This order be
communicated to the Secretary, Orissa Public Service Commission so as to enable him
to ensure that no room is left for such complains.
***
608
O.J.C. 648/2002 & connected cases D.D. 12.8.2002
The Hon'ble Chief Justice Mr. P.K.Balasubramanyan
The Hon'ble Mr. Justice A.S.Naidu Amarjit Keshari Das & Others – Petitioners -vs- State of Orissa & Ors. - Opposite parties
Recruitment to Orissa Judicial Service Class-II Held – In view of Article 234 of the Constitution primacy in the matter of selection of Judicial Officers must rest with the High Court. It is the duty of the High Court to get the question papers set and the Examiners selected and it would the duty of P.S.C. to complete the procedure of recruitment like calling for applications, scrutiny etc.
JUDGMENT
All these writ petitions relate to recruitment to the Orissa Judicial Service
Class II. While the first tow writ petitions relate to the selection conducted pursuant to
a notice dated 10.08.1999, O. J. C no 6210 of 2001 seeks a declaration of Orrisa
Judicial Service Rules, 1994 (hereinafter referred to as the ‘Rules’) as ultra vires and
seeks the issuance of a direction to the State to frame a fresh set of Rules essentially
entrusting the recruitment to the High court by keeping out the Orissa Public Service
Commission or minimizing its role. The prayer in OJC No. 1313 of 2002 is for the
issue of a writ of mandamus directing the opposite parties to commence the
recruitment process for filling up the vacancies in the Orissa Judicial Service, Class II
2. On commencing the process of recruitment, the written examinations were
held in different centers at Cuttack. There existed 85 vacancies and pursuant to
Advertisement No. 10 of 1999-2000, 1475 candidates applied. Out of them, 1417
applications were found to be valid and those persons who were found to be qualified
were admitted for the written examinations to be conducted from 16.07.2000 to
19.07.2000. Out of 1471 candidates admitted for the written examinations, only 788
candidates took the examinations. The process of valuation was taken up and the
general candidates who obtained 45% marks and above were called for a viva voce
test. In respect of Scheduled Caste and Scheduled Tribe candidates the minimum
qualifying mark was 40%. As per Rule 17 of the Rules, a total of 38 candidates were
called for the viva voce test. That test was held 1st to 3rd February 2001. The viva voce
test was held by a Committee of three, one of them was a sitting Judge of the High
Court, another the Chairman of the Public Service Commission and the third, a
member of the public service commission. The final select list was drawn, published
and sent to the Government on 05.02.2001.
609
3. As regards the challenge to the examination already held and the process of
valuation adopted, the main plank of attack is that some of the examiners entrusted
with the work of valuation were running institutions of their own offering coaching to
the students and they had misutilised their position as examiners to benefit the students
studying in their institutions and they had shown undue favours to them. This
allegation is denied, though it appears that at least in the case of one of the examiners
an advertisement was issued regarding such an institution offering coaching for the
test giving the telephone number of his brother as the contact telephone. Whatever it
be, especially in view of the provision that there would be no revaluation, we are not
satisfied that sufficient ground has been made for interfering with the valuation
already completed and the list prepared on the basis of that valuation. But, we must
express our anguish over the fact that pedagogues who hold positions of great respect
in society are charged with conduct unbecoming of teachers (Gurus, who along with
mother (Matha) and father (Pitha) are equated with God in our tradition). Even if we
accept the stand of the opposite parties and discard the charge of irregularity and
impropriety sought to be projected, we are unhappy that the position of a teacher has
deteriorated to the extent that such charges are not only conceived, but are actually
hurled at them. We cannot but take notice of the frequency with which the charge of
improper valuation of answer papers by teachers is made in writ petitions filed in this
court relating to various examinations conducted in the State. Considering our ethos
and great standards set by their predecessors, to refurbish their image by
uncompromisingly truthful approach to each and every part of their profession so that
no one dares to raise such an allegation against them. The national character and its
development depend on the teacher, the Guru, and if that institution loses its
credibility or becomes worm infected, that would be a sad for this country and the
State. We trust that the teaching fraternity as a whole would rise tot the occasion and
spare no effort in building up the character of the student community in our State and
thereby in our Country.
4. The Orissa Judicial Service Rules 1994 was amended by Notification S. R. O
No 328/98 dated 14.07.1998. There was no significant amendment to Rule 18 of the
Rules and there was no change in the composition of the Committee to hild viva voce
test. During the course of the hearing, it was suggested by the Senior Counsel
appearing for the petitioner that the process of recruitment may be taken by the High
Court, and that trouble arises when the Orissa Public Service Commission is entrusted
with the conduct of examinations including the viva voce test and even though there is
a provision that the Chief Examiner should be appointed after consultation with the
610
Chief Justice, what normally happens is that the failings of the ones available, are not
always brought to the notice of the Chief Justice or highlighted. This resulted in
appointment of examiners not always desirable and this should be eliminated so as to
ensure fairness in the selection process. It was also submitted that the Chairman of the
Public Service Commission and a Member thereof sitting with him could over-rule a
Judge of the High Court, who was the nominee of the Chief Justice in the Committee
for conducting the viva voce test and this also results in unfairness in selection since
a Judge of the High Court concerned with the Judiciary was obviously the more
qualified person to identify the more suitable among the candidates.
5. The learned Advocate General, who appeared on behalf of the State, submitted
that the Public Service Commission had necessarily to be associated with the process
of selection, especially in view of Article 234 of the Constitution of India and that
even though there may be merit in the contention that the primacy in the matter of
selection must be with the High Court, the submission that the Public Service
Commission should be kept out, should not be accepted. Since the Court felt that it
would be better to know that exactly was the reaction of the State to the situation
arising out of these submissions, the matter was adjourned seeking the views of the
government. The Government thereafter considered the matter and a fresh affidavit
dated 29.4.2002 was filed in OJC No. 6210 of 2001. The State, according to the
affidavit took the view that isolating the Public Service Commission a constitutional
body from the process of selection completely may not be in accord with Article 234
of the constitution of India and the emerging situation can best be met if the High
Court is assigned the dominant role in the process of selection and the Public Service
Commission attends to the procedural matters like inviting applications and having a
minor representation in the selection body. The learned Advocate General submitted
that if this Court thought it proper, while the Public Service Commission would invite
applications and look after the holding of the examinations proper matters relating to
the setting of question papers, appointment of examiners and the like can be taken
over by the High Court so as to ensure no deviation from the straight a narrow path at
any of those stages, and that the Committee of three for conducting the viva voce test,
can consist of two sitting Judges of the High Court to be nominated by the Chief
Justice, and the Chairman of the Public Service Commission or a Member of the
Commission nominated by him.
6. We think that the stand adopted by the learned Advocate General on behalf of
the State and the approach adopted by the State commends acceptance. We accept the
same. We must place on record our appreciation of the fact that the State Government
611
could see the necessity for ensuring the selection of the most equipped and suitable,
for discharging duties as Judicial Officers and the need to eliminate any possible
deviation in the process of selection. We think that in the light of the suggestions of
the Government and the submission of the learned Advocate General supported by the
submissions of Mr. Mohanty, learned Senior Counsel, who appeared for some of the
petitioners, it would be sufficient to direct that the primacy in the matter of selection
will rest with the High Court and it would be the duty of the High Court to get the
question papers set and the examiners selected, and it would be the duty of the Public
Service Commission to complete the procedural requirements like calling for
application, scrutinizing them and actually holding the written examinations as was
being done hitherto. As noted, after the written examinations the papers are not to be
valued at the instance of the High Court through examiners chosen by the High Court,
and a list of candidates to be called for the viva voce test to be prepared by the Public
Service Commission based on the mark list furnished by the High Court. Thereafter,
those who are invited for the viva voce test are to be examined by the Committee
which is to consist of two sitting Judges of the High Court to be nominated by the
Chief Justice and by the Chairman of the Orissa Public Service Commission or his
nominee.
7. The learned Advocate General submitted that whatever amendments needed to
be made in the Orissa Judicial Service Rules, 1994 in compliance with the above
directions of this Court, will be made by the State, and the next recruitment can
proceed on the basis of such directions and the amendments to the Rule to be brought
about. We record that submission and direct the State to take steps to amend the Orissa
Judicial Service Rules, 1994 as amended by S. R. O No. 328/98 dated 14.7.1998 to
make it consistent with the directions issued above
8. We do not think it necessary or proper to interfere with the selection process
already undertaken and hence, we do no think it necessary to grant any relief to the
petitioners regarding the challenge to that selection. Nor do we feel it necessary to
strike down the Orissa Judicial Service Rules, 1994 as prayed for in OJC No. 6210 of
2001. As soon as the necessary amendment is notified as indicated above, a fresh
advertisement for recruitment to the Orissa Judicial Service, Class II will be issued by
the Orissa Public Service Commission and the entire process of selection completed as
early as possible, in view of the large number of vacancies remaining unfilled.
9. The writ petitions are allowed to the above extent and in the above manner.
***
612
PUNJAB PUBLIC SERVICE COMMISSION
613
Secretary, Punjab Public Service Commission as per letter dated 6.6.2003 has
only mentioned citations of important judgments relating to that Commission reported
in S.L.R. (Service Law Reporter). For the benefit of other Public Service
Commissions and questions involved in those cases and the decisions thereon (Head
Notes) as reported in SLR are given below:
1986 (1) SLR 644
Uttam Singh Vs. State of Punjab (Pb. & Hry.)
A. Constitution of India, Article 16 – Punjab Civil Service (Executive Branch) Class I Rules, 1976, rule 9(5) – Promotion – Eligibility of a candidate for purposes of promotion to be seen at the time when the vacancy for such a candidate occurs – Respondent No.3 being not a Tehsildar/Naib Tehsildar in the year 1978 was not eligible to be considered and appointed in P.C.S. against a vacancy earmarked for the year 1978 – He is entitled to be considered for promotion only for any subsequent vacancies for which he may be eligible but did not deserve any consideration for appointment against the quota vacancy earmarked in 1978. (Para 4)
B. Punjab Civil Service (Executive Branch) Class I Rules 1976,rules 8(4) and 9 Promotion/Direct appointment – Appointment of Naib Tehsildars or Tehsildars P.C.S. Service – It is an appointment by ways of promotion on selection and cannot be considered to be direct appointment. Clause (c) of Rule 2, which has been reproduced above, defines 'direct
appointment'. It lays down that it means an appointment made otherwise than by
promotion or by transfer of an official already in the service of Government of India or
a State Government Persons in the service of the State Government like the petitioner
and respondent No.3 are appointed to the Service, i.e., Punjab Civil Service (Executive
Branch) by way of promotion based on selection. It is only through Register 'B' that
persons are recruited by way of direct appointment. As per clause (4) of Rule 8
reproduced above, their names are entered in Register 'B' as a result of a competitive
examination. (Para 4)
The entitlement of the various authorities, i.e., the Commissioners, Financial
Commissioner, Revenue Minister and the Chief Minister to add the names to the list
submitted by the Deputy Commissioners and to be later considered by the Punjab
Public Service Commission does not mean that these authorities can recommend the
names for such a consideration of any person or a person other than a Tehsildar or a
Naib Tehsildar. These authorities have to restrict their choice to the category of
Tehnsildars/Naib Tehsildars. This addition of names by these authorities did not make
the recruitment of respondent No.3 by way of direct appointment. He has been
promoted to the Service by way of selection from the category of persons whose
names were borne on Register 'B'. In the light of the binding precedent in
Y.V.Rangaiah's case (supra), I have no hesitation in holding that respondent No.3
614
being not a Tehsildar/Naib Tehsildar in the year 1978 was not eligible to be
considered and appointed against vacancy in the Service earmarked for the year 1978.
His consideration along with the petitioner for such an appointment was clearly
violative of Articles 14 and 16 of this Constitution.
C. Constitution of India, Articles 14 and 16 – Punjab Civil Service (Executive
Branch) Class I, Rules, 1976, rule 9 – Interview – Promotion of Naib Tehsildars or
Tahsildars in the cadre of Punjab Civil Service – Fixation of 40% marks for interview
– Thus practice in vogue for the last twenty years – In the case of services to which
recruitment has necessarily to be made from persons of matured personality, interview
test may be the only way subject to basic and essential academic and professional
requirements being satisfied – No violation of Articles 14 and 16. (Para 6)
***
615
1989(4) SLR 403
Harjit Singh Sidhu v. State of Punjab (Pb. & Hry.)
A. Constitution of India, Articles 226 and 320 – Punjab Civil Services (Executive
Branch) Rules, 1976 – Writ of Mandamus/Public Service Commission/ Appointment
– Public Service Commission has a distinct and distinguished status and should not
identify itself with the Government authorities – Powers of High Court under Article
226 cannot be invoked to make directions to the Commission for recommending any
candidate for appointment to a Public Service post as it would amount to interference
in is working as an independent institution having peculiar and distinct status.
The Commission has a distinct and distinguished status under our
Constitution and cannot and rather should not identify itself with the Government
authorities. The powers of this Court under Article 226 of the Constitution of India
cannot be invoked to make directions to the Commission for recommending any
candidate for appointment to a public service post as it would amount to interference
in its working as an independent institution having a peculiar and distinct status. The
purpose behind giving this status to the Commission, is apparent and not hard to seek.
The framers of the Constitution wanted such an independent body to select such
qualified persons as were expected to do their duties effectively and without any
interference therein. With that intention in view, the Commission has given powers to
recommend appointments of only those successful candidates who were thought to be
capable to fulfill the intention of the framers of the Constitution. (Para 27)
B. Constitution of India, Article 162 – Public Service Commission (Limitation of
Functions), 1955, Clause 10, 16 and 17 –Executive Instructions/Appointment – Names
recommended by Public Service Commission for appointment – No waiting list
prepared by Commission – Executive instructions regarding filling up the vacancies
contained in annexure P2 – In view of statutory provisions no directions can be issued
on the basis of executive instructions contained in Annexure P2. (Para 45)
***
616
1989(5) SLR 133
Balbir Singh v. Punjab P.S.C. (Pb. & Hry.)
Constitution of India, Articles 14 and 16 – Interview - Shortlisting the number of
candidates for Interview – Holding of Screening test in four different batches – cannot
be considered to be an act of arbitrariness on the part of the Commission.
To consider the question of discrimination as agitated by the petitioners, one
has to bear in mind the fundamental fact that there were more than five thousand
applications for the posts advertised. As a matter of fact the Commission had
visualized this contingency and had, therefore, notified in the advertisement itself that
there may be a written test for shortlising the candidates. (Para 3)
***
617
1990(2) SLR 472
Amrit Lal Garg v. State of Punjab (Pb. & Hry.)
Constitution of India, Articles 226 and 311 – Punjab Civil Service (Executive Branch)
(Class I) Rules, 1976, Rule 23(2)(a) – Selection/Appointment – Appointment to the
Punjab Civil Service (Executive Branch) on the recommendation of State Public
Service Commission – Withdrawal of recommendation by the Commission on the
ground that there was discrepancy in the award of marks by the Commission in favour
of petitioner – Removal from Punjab Civil Service – Action of the Commission
invalid – After recommending the name of the petitioner as a selected candidate for
appointment to the Punjab Civil Service (Executive Branch) Commission became
functus officio and had no jurisdiction to withdraw the recommendation.
The recommendation made in favour of the petitioner has been withdrawn by
the Commission in the wake of show-cause notice and the petitioner stands removed
from the Punjab Civil Service (Executive Branch), without holding any inquiry at all,
much less a detailed one, in accordance with the statutory rules. Such an action cannot
be countenanced as it is wholly violative of the principles of natural justice, as also
against the provisions of the Punjab Civil Service (Executive Branch) (Class I) Rules,
1976.
It had nowhere been suggested much less established, that there was any
misconduct or irregularity committed by the petitioner, as such, when he was not even
remotely connected with the alleged discrepancy in the award of marks etc., the
petitioner could not be made to suffer for any mistake which had either been
deliberately committed or inadvertently crept in the records of the Commission
selection had been made by the Commission and the name of the petitioner had been
recommended as a selected candidate for appointment to the Punjab Civil Service
(Executive Branch), the Commission was functus officio and had no jurisdiction to
withdraw the recommendation. Once appointment of the petitioner had been made to
the Punjab Civil Service (Executive Branch) and he became a member of the Service
governed by the Statutory service rules framed under Article 309 of the Constitution
namely, Punjab Civil Service (Executive Branch) (Class I) Rules, 1976, he could only
be removed from service by holding an inquiry, if work and conduct of the petitioner
were not found upto the mark or by way of disciplinary action contemplated under the
aforesaid Rules. (Para 10)
***
618
1993 (2) SLR 757
Asha Mehta v.State of Punjab (Pb. & Hry.)
Constitution of India, Article 14 – Punjab Civil Services (Judicial Branch) Rules 1951,
Rules 7 and 8 – Examination – Recruitment to Punjab Civil Service (Judicial Branch)
– Written test and interview – Written test comprising of five papers – Candidate
obtaining less than 33% marks in a particular paper not given credit for those marks –
Petitioner having 32.5% marks in English paper and claiming that the same should be
rounded off to 35% and credit be given to her – Marks to be extent of 0.5% rounded
off in making appointments of lecturers – Held that different criteria cannot be applied
for different posts and 32.5% marks of petitioner be rounded off to 33% and she be
called for interview by the Punjab Public Service Commission.
(Para 6)
***
619
1995 (3) SLR 179
Shiv Kumar J. Nath v. State of Pb. (Pb.Hry.)
A. Constitution of India, Article 320(3) – Punjab Public Service Commission
(Limitation of Functions) Regulations 1955, Regulation 3 – Ad hoc appointment –
Appointment of Block Development and Panchayat Officers – It is only pending
recommendations by the Commission that the Government could fill up posts on ad
hoc basis in emergent situation in public interest and that too if there was dire
necessity for making ad hoc appointments – Instant case was not one of dire necessity
where the Government had no choice but to make ad hoc appointments – Government
withdrew requisition sent to Commission – Made ad hoc appointments for 6 months –
Selection not on merits – Appointments made within ten days of release of selection
list even without antecedents verification and medical examination – Process for
making regular appointment not initiated – Conduct of Government clearly establishes
that favouritism, nepotism, unfairness and a good deal of political influence played a
vital role in the selection. (Paras 21, 22, 23 and 24)
B. Constitution of India, Article 320(3) – Punjab Public Service Commission
(Limitation of Functions) Regulations 1055, Regulation 3 – Appointment – Selection
– Interview – Selection for filling the posts of Block Development and Panchayat
Officers (Class II) – Written test for 100 marks – Prescription of 33% marks for
interview held to be on higher side. (Para 28)
620
1995 (5) SLR 310
Parkash Singh Lamme v. The State of Punjab (Pb. & Hry.)
A. Constitution of India, Article 320 – Punjab Public Service Commission
(Procedure) Rules, rule 17 – Committee for interview – Rules framed by Public
Service Commission for regulating its functioning are only guidelines for the
Commission and are not mandatory – Minor deviation or an occasional departure
from the rules cannot be interpreted to mean that the recommendations of the
Commission are vitiated – Committee consisting of two members of the Commission
not illegal – It is not essential that Full Commission should hold the interview.
Rule 17 inter alia provides that the Commission may "from and to time decide
to constitute Board(s) or Committee(s) of one or more members for holding interviews
of candidates for recruitment to various posts or for the purpose of any of its other
functions". The composition of the Board or committee has to be decided by the
Chairman. It is further provided that any "decision made or order of preference settled
by" the Board or the Committee shall be placed before the Commission for approval
and confirmation. In clause (iv), it has been inter alia provided that "where more than
one Member constitute a board for holding the interview, the senior most Member
shall preside assisted by Subject Expert(s).
The short question that arises for consideration is – Is it mandatory that the full
Commission should meet for making the selection and is it necessary to associate a
"subject expert"?
The Commission is a Constitutional body. Persons of eminence re selected
and appointed to be members of the Commission. No rule or law requires the
Commission to frame any regulations to govern its internal working. If it frames any
rules, these are necessarily in the nature of guidelines, which should be normally
followed. Strict adherence to these provisions may not be necessarily insisted upon.
The object of framing the rules is to ensure proper functioning. However, a minor
deviation or an occasional departure from the rules cannot be interpreted to mean that
the recommendations of the Commission are vitiated. (Para 7)
Even under the provision of Rule 17, it is permissible for the Commission to
form committees. Such a committee can consist of one or more members. It is
permissible for the Commission to associate subject expert(s). The obvious purpose of
the provision is to ensure that the expert is able to question the candidates on technical
621
matters. It is calculated to ensure that the Commission should be able to select the
best candidates. In the present case, the Commission had to make the selection from
amongst the candidates recommended nominated by the Government. The
Commission had to examine the service record of the candidates and also to adjudge
their suitability on the basis of their performance during the interview for appointment
to the Punjab Civil Service. However, the posts in the civil service are not technical
posts. These are administrative posts. If in this situation the Commission considered it
unnecessary to associate any expert, it cannot be said that it violated the mandatory
provision of law which should result in vitiating its recommendation. It may be added
here that even though, the learned counsel for the petitioners contended that the
selection was made only by the committee, it has not been averred in the petition that
the recommendation of the Committee was not placed before the Commission for
approval and confirmation. That being so, the action of the Commission was in
conformity with the provisions of Rule 17.
B. Constitution of India, Article 16 and 226 – Evidence Act, 1872, Section 115 –
Estoppel/Interview/Bias – Allegations of Bias against one of the members, associated
with the Committee constituted for interviewing candidates – Candidates appeared for
interview before the committee without any objection – Having taken chance in the
interview they are now estopped from challenging the selection made by the
Committee.
We are unable to accept this contention. Firstly, if the petitioners were sure of the
relationship, they should have given the details in the petition. They have not.
Secondly, if all of them or at least one of them knew about the relationship, then they
should not have appeared in the interview. They should have objected and asked for a
reconstitution of the Committee. They did not. It is, thus, apparent that they took
their chance. Having failed at the interview they have chosen to file the petition and
challenge the selection. It appears that they were sitting on the fence. They cannot
permitted to do so. Having taken their chance, they are now estopped from
challenging the selection on the ground that respondent No.4 was wrongly included in
the selection committee or that he was not capable of making an objective selection.
C. Constitution of India, Article 226 – Writ jurisdiction/Suppression of material
facts – Petitioner suppressed vital points about the punishment imposed on him in the
writ petition highlighting his merits – Such practice deprecated.
***
622
CWP NO. 15499 OF 1994
JUDGMENT The petitioners along with Respondents 6 to 8 and two other persons (who are
in the service of the State Government) were considered for selection and appointment
to the Punjab Civil Service (Executive Branch). They were interviewed by a
committee consisting of two members of the Public Service Commission on
September 9, 1994. The petitioners were rejected. Respondents 6 to 8 were selected.
The petitioners impugn the selection of Respondents 6 to 8 in this petition.
Mr. P. S. Patwalia, learned counsel for the petitioners has contended that the
selection is vitiated as :
i) The selection was made by a committee consisting of only two members of the Commission and even an expert was not associated.
ii) The State Government did not properly forward the records of
the petitioners and Respondents 6 to 8.
iii) Respondents N0. 4 being a relation of Respondent No. 6 was biased in his favour.
The claim made on behalf of the petitioners has been controverted by the
learned counsel for the Respondents.
It may be noticed at the outset that this petition had come up for hearing
before us on August 9, 1995. We had asked the learned counsel for the State of
Punjab to produce the files containing the confidential reports of the parties before us.
These were produced on August 10, 1995. We perused those files. We found that all
the seven officer had good record of service. If at all, the record of Respondents 6 to 8
was certainly a shade better than that of the petitioners. In this situation, it cannot be
said that the action of the authorities in selecting Respondent 6 to 8 was in any way
unfair, unjust or arbitrary.
With this background, we proceed to consider the contentions raised on behalf
of the petitioners.
Re: (i)
Firstly, it has been contended that the selection has not been made by the
Commission but only by a committee consisting of two members. Furthermore, even
this committee did not associate a Subject Expert, as contemplated under Rule 17 of
the Rules of procedure framed by the Public Service Commission. According to the
623
Counsel, the selection made by the committee without associating any expert is, thus,
vitiated. On the other hand, Mr. Hira Lal Sibal, learned counsel for Respondents 6 to
8 submitted that the rules framed by the Commission are meant to regulate the
functioning of the Commission and are not mandatory.
Rule 17 inter alia provides that the Commission may “ from time to time
decide to constitute Board(s) or Committee (s) of one or more members for holding
the interviews of candidates for recruitment to various posts or for the purpose of any
of its other functions’’. The composition of the Board or Committee has to be
decided by the Chairman. It is further provided that any “ decision made or order of
preference settled by” the Board or the Committee shall be placed before the
Commission for approval and confirmation. In Clause (iv), has been inter alia
provided that “ where more than one Member constitute a board for holding the
interview the senior most Member shall preside assisted by Subject expert (s)”.
The short question that arise for consideration is - Is it mandatory that the full
Commission should meet for making the selection and is it necessary to associate a “
subject expert”?
The Commission is a Constitutional body. Persons of eminence are selected
and appointed to be the members of the Commission. No rule or law requires the
Commission to frame any regulations to govern its internal working. If it frames any
rules, these are necessarily in the nature of guidelines, which should be normally
followed. Strict adherence to these provisions may not be necessarily insisted upon.
The object of framing the rules is to ensure proper functioning. However, a minor
deviation or an occasional departure from the rules cannot be interpreted to mean that
the recommendations of the Commission are vitiated.
Even under the provision of Rule 17 it is permissible for the Commission to
form committees. Such a committee can consist of one or more members. It is
permissible for the Commission to associate subject expert(s). The obvious purpose of
the provision is to ensure that the expert is able to question the candidates on technical
matters. It is calculated to ensure that the Commission should be able to select the
best candidates. In the present case, the Commission had to make the selection from
amongst the candidates recommended/ nominated by the Government. The
Commission had to examine the service record of the candidates and also to adjudge
their suitability on the basis of their performance during the interview for appointment
to the Punjab Civil Service. However, the posts in the civil service are not technical
624
posts. These are administrative posts. If in this situation, the Commission considered
it unnecessary to associate any expert, it cannot be said that it violated the mandatory
provision of law which should result in vitiating its recommendation. It may be added
here that even though, the learned counsel for the petitioners contended that the
selection was made only by the committee, it has not been averred in the petition that
the recommendation of the committee was not placed before the Commission for
approval and confirmation. That being so, the action of the Commission was in
conformity with the provisions of Rule 17.
In our view, the action of the Commission in constituting a committee and in
not associating an expert does not vitiate the selection. Consequently, the contention
raised on behalf of the petitioner, is rejected.
Re: (ii)
It was then contended that the State Government did not forward the
complete records of the petitioners and the private respondents. The Commission
could not, as such, adjudge the suitability of the candidates properly. In particular, it
was pointed out that Respondent No. 6 had been awarded a censure vide order dated
December 7, 1982. Another order of censure had been conveyed to him on June 5,
1989. Even his increment had been stopped with cumulative effect vide order dated
November 8, 1991. However, this record was not forwarded to the Commission. It
has been further submitted that Respondent No. 7 had been given an adverse report for
the year 1992-93. Even this report was not forwarded to the Commission. As for
Respondent No. 8, it was conceded that there is nothing against him. On behalf of the
Respondents, it was pointed out that so far as the order of censure dated December 7,
1988 is concerned, a suit was filed by Respondent No. 6 and the matter is pending
before the Additional District Judge, Bathinda. The order of censure passed on June
5, 1989, has already been set aside by the Court in September 1993. Similarly, even
the punishment of stoppage of one increment imposed on Respondent No.6 had been
set aside by the Government. Consequently, these orders were not required to be
forwarded to the Commission. With regard to the allegation that Respondent No. 7
had been given an adverse report for the year 1992-93, it has been averred in the
written statement on behalf of the State Government that according to the instructions
issued by the Government vide letter dated May 28, 1993, a copy of which was
produced as Annexure R-1, it had been decided that the confidential reports should be
completed by the end of the year. In case, it was not done, a “ no report certificate’’
shall be placed on the file. In other words, if the annual confidential report in respect
of an officer is not finalized by the end of the calendar year, then it is not placed on the
625
personal file. It was in view of this position that a ‘ no report certificate’ in respect of
Respondent No. 7 regarding the year 1992-93 had been placed on the file.
Furthermore, it has also been pointed out that petitioner No.3 had been awarded the
punishment of censure vide order dated September 25, 1989. Furthermore, complaints
are pending against petitioner 1, 2 and 4. The complaint against petitioner No.2 was
said to be of a serious nature. An embezzlement / misuse of official grants was
involved. In all the three cases, enquiries are pending before the Additional Deputy
Commissioners of the respective Districts.
It is true that while considering the competing claims of the candidates, the
Commission should have not only the confidential reports but also the other relevant
record before it. However, it has nowhere been pleaded that information with regard
to the order of censure etc., had not been conveyed to the Commission. Furthermore,
on the admitted facts as borne out from the pleadings of the parties, the claim made by
the petitioners that “ all of them have been given compliments and appreciation letters
for their work and conduct” or that “ none of them has ever been inflicted any
punishment…….. They have never been administered any warning”, does not
appear to be accurate. In fact, petitioner No. 3 himself who has verified the
averments in the petition was awarded the punishment of censure vide order dated
September 25, 1989. Even enquiries are pending against them. In this situation, the
petitioners cannot claim that their record of service is better than that of Respondents 6
to 8 or that the Government had not made the complete record available to the
Commission prior to the date of interview. Consequently, even the second contention
is rejected.
Re: (iii)
It was then argued that Respondents No. 6 is related to Respondent No. 4 and
the selection is vitiated on account of bias. The allegation has been categorically
denied by Respondent No. 6. Not only that, even the exact relationship has not been
disclosed by the petitioners. The averment in this behalf is contained in para 6 of the
petition. The relevant portion is extracted below :-
“That it would be relevant to mention here that Respondent No.6 is the cousin nephew of mother of Respondent No. 4 i.e., the mother of Respondent No. 4 is a cousin ‘ Bua’ of Respondent No. 6. Though Respondent No. 6 is not real cousin of Respondent No. 4 yet their relations are so close that the same are more the (than) real. It may also be highlighted here that Respondent No. 4 was residing at Circuit House, Patiala and whenever Respondent No. 6 visited Patiala, he used to stay with Respondent No. 4, though there is no
626
evidence to this effect. Due to closeness of relationship, the Respondent No. 6 was so much confident that even before facing the interview board he had declared that he will definitely be selected. This averment made by Respondent No. 6 before facing the interview has also been highlighted by some of the candidates by making a representation dated 7/9/1994.”
Even if the grammatical mistakes made by the petitioners are ignored, it is
not possible to make out as to what is the precise relationship. Still further, even
though, it has been suggested that Respondent No. 6 had stayed with Respondent No.
4 at the Circuit House, it has been conceded that “ there is no evidence to this effect”.
Moreover, even this vague suggestion has been denied. Taking the totality of facts into
consideration, it appears that the petitioners have only made a wild allegation without
any basis.
It was emphasized by the learned counsel for the petitioners that two days
prior to the interview, one of the petitioners had sent a letter to the Chief Justice of
India alleging that Bhupinder Singh (Respondent No. 6) and Ajmer Singh
(Respondent No. 7) had struck a deal with the Chairman of the Commission and
Respondent No. 4. Learned counsel submitted that this letter was an intrinsic evidence
of the fact that Respondent No. 4 was biased against the petitioners and that he was in
fact related to Respondent No. 6.
We are unable to accept this contention. Firstly, if the petitioners were sure
of the relationship, they should have given the details in the petition. They have not.
Secondly, if all of them or at least one of them knew about the relationship, them they
should not have appeared in the interview. They should have objected and asked for a
re-constitution of the committee. They did not. It is, thus, apparent that they took
their chance. Having failed at the interview they have chosen to file the petition and
challenge the selection. It appears that they were sitting on the fence. They cannot be
permitted to do so. Having taken their chance, they are now stopped from
challenging the selection on the ground that Respondent No. 4 was wrongly included
in the selection committee or that he was not capable of making an objective selection.
On behalf of the Respondents, it was suggested that the letter was probably
written by the petitioners only to create evidence. The suggestion does appear to be
totally baseless.
No other point was urged.
627
Before parting with the judgment, we may observe that the averments made in
the petition are not accurate. There is a deliberate attempt to over-state the case by
the petitioners. Allegations have been made without due care and caution. The
averment that the service record of the petitioners is absolutely clean, is belied by the
written statement filed on behalf of the respondents. In particular, it deserves mention
that petitioner No.3 who has verified the contents of the petition, has made a wrong
averment that even a warning had not been administered to the petitioners. As already
noticed, he had been censured in the year 1989. The petitioners will do well to eschew
the temptation to make inaccurate statements. Reluctantly, we leave the matter here.
In view of the above, we find no merit in this writ petition. It is dismissed.
The petitioners shall pay costs to Respondents 6 to 8. The costs are assessed at Rs.
5000/-.
***
628
1996(5) SLR 375
State of Punjab v. Kamal Dev (Pb. & Hry.)
A. Constitution of India, Articles 14, 16 and 320 - Interview/Viva
Voce/Selection/Appointment – Selection for appointment to number of posts of Head
Masters and Head Mistresses in Punjab Education services (Gazetted II) School Cadre
– More than 8,000 candidates applied for 180 posts – Holding of screening test for
short listing candidates for purposes of calling candidates for interview – It is one part
of the entire selection process – Final selection on the basis of interview – Marks in
interview split up i.e. for academic qualifications 60% and for interview 40% - Marks
obtained in the screening test need not be added in the process of selection by
interview – Fair method of selection – No arbitrariness, in the process of selection.
(Paras 6, 12 and 13)
B. Constitution of India, Article 320 – Public Service Commission Rules, Rules 3
and 10 – Quorum – Selection for appointment by Public Service Commission –
Special Rules providing for quorum shall prevail over general regulations.
***
629
1997(5) SLR 133
Kuldip Singh v. State of Punjab (Pb. & Hry.)
A. Constitution of India, Article 16 – Punjab Civil Services (Judicial Branch) Rules, Rule 7 – Appointment/Interview/Rounding off Marks/Competitive Examination – Rounding off fraction of marks obtained in the written competitive examination for bringing a candidate into the field of choice for selection to the post is not warranted by law unless the rules governing the selection specifically provide in this regard [Asha Mehta, Deep Singhs' case over rules].
B. Constitution of India, Articles 136 and 141 – Precedent/Doctrine of
Merger/Special Leave Petition – Special Leave Petition dismissed in limine by Supreme Court – It cannot be said that there has been declaration of law by Supreme Court – Order appealed against does not merge in the order of Supreme Court.
C. Constitution of India, Article 16 – Punjab Public Service Commission (Judicial
Branch) Rules – Interview/Short listing of candidates – Public Service Commission has got the right to short list the candidates on the basis of marks and on higher education or technical qualifications. (Para 18)
J U D G M E N T
CWP NO. 12923 & 14279 OF 1994 JAWAHAR LAL GUPTA . J (ORAL) The petitioners in these two cases were candidates for recruitment to the
Punjab Civil Service (Judicial Branch). The appeared in the competitive examination
held in October, 1993. They were not called for interview on account of the fact that
they failed to secure the requisite percentage of marks either in to secure the requisite
percentage of marks either in a paper or in the aggregate. The petitioners pray for the
issue of a writ in the nature of mandamus directing the respondents to give them the
benefit of "round off" the marks. Reliance has been placed o the decision of a learned
single Judge in Asha Mehta V. State of Punjab and another, 1993(3) R.S.J.I. and a
decision of the Division Bench in Civil Writ Petition No. 1112 of 1996 decided in
March, 1996 (Rajeev Kumar V. State of Punjab). The decision in Asha Mehta's
case (Supra) was affirmed by their Lordships of the Supreme Court vide order dated
November 9, 1995.
On the other hand, learned counsel for the respondents has pointed out that the
claim for rounding off the marks has been rejected by at least three Division Bench
decisions of this Court. The first of these decisions is in Harbhajan Singh Kundel
V. The *State of Punjab and another (Civil Writ Petition No. 4527 of 1993) which
was decided on May 3, 1993. Thereafter, the matter was considered by another
630
Division Bench in Civil Writ Petition No. 821 of 1996 (Shiv Kumar V. State of
Haryana and another) which was decided on June 30, 1996. The decision in Shiv
Kumar's case (Supra) was followed by another Division Bench in Sanjiv Kumar V.
The Punjab University (Civil Writ Petition No. 12663of 1995) decided on April 9,
1996. In Harbhajan Singh Kundel case (Supra) the benefit of rounding off was
denied on the ground that the rules which lay down the condition of eligibility for
being called for the interview contained a positive prohibition "from calling candidates
for interview who had not obtained at least 50 per cent qualifying marks in the
aggregate of all the written papers ...................." In Shiv Kumar's case (Supra), the
Division Bench observed that if the benefit of rounding off was given to the
candidates, a person securing 550.9 marks shall be brought at per with another
securing 561 marks. This would make two un-equals equal. The Bench held that in
competitive selection, the benefit of rounding off could not be given. The view in
Shiv Kumar's case (Supra). These judgments were not brought to the notice of the
Division Bench which decided Rajeev Kumar's case (Supra)
Mr. Jasbir Singh, learned counsel for the petitioner, submits that the Punjab
Public Service Commission has been consistently following the practice of giving
benefit of rounding off the marks to candidates appearing in various competitive
examinations. Can it do so? In a competitive selection, the inter se merit of
candidates has to be determined on the basis of the marks actually secured by them
and not giving benefit of grace marks or by rounding off the marks as a result of which
a person with lesser marks is brought at per with another securing higher marks. It
makes two un-equals equal which would be violative of guarantee of equality as
enshrined in Articles 14 and 16 of the Constitution. That is the rationale behind the
decisions in the cases of Harbhajan Singh Kundel, Shiv Kumar and Sanjiv
Kumar. Still further, the action of the Commission in granting kind of marks to
candidates appears to be is violation of the rules. If a rule requires that no candidate
who fails to secure a particular percentage of marks shall be eligible to be appointed or
even allowed to appear in the viva voce test, the Commission cannot without any
provision in the Rules relax that qualification or make the candidates eligible by
giving him the benefit of rounding off the marks. This would be an infraction of the
rule.
The issue that arises in these cases is of significance. It is of general
importance. There is a conflict in judicial opinion. In this situation, it appears in the
fitness of things that these cases be placed before a Full Bench for authoritative
decision.
631
Accordingly, it is directed that the papers of these cases may be placed before
Hon'ble the Chief Justice for constitution of the Full Bench.
J U D G M E N T
K. SREEDHARAN C.J.
These two writ petitions have come before us on a reference made by one of
the learned Judges of this Court.
The issue referred is as to whether the Public Service Commission in deciding
the merits of a candidate is justified in grating the benefit of more marks by rounding
off the marks obtained in the examination. Learned Judge doubted the correctness of
the decision rendered by this Court in Asha Mehta Vs. State of Punjab and other
1993(3) RSJ 1 and that of a Division Bench in CWP NO. 1112 of 1996. These
decisions strike a different note from those in CWP Nos. 4527/1993, 821/1996 and
12663/1995. For proper understanding of the issue involved in these cases, it is
necessary to refer to the bare facts of the cases.
Petitioners in these cases were candidates for the post of PCS (Judicial). In
pursuance to the Notification issued by Public Service Commission, Punjab,
petitioners submitted applications for the said posts. They satisfied the eligibility
criteria fixed in the Notification. They were called for competitive examination which
was held in October 1993. Their names did not appear in the list of candidates eligible
for being called for interview. In the case of petitioner in CWP No. 12923/94, 347
marks were awarded to him out of total of 900 marks. In assessing the total marks, 65
marks obtained by him out of 200 in Criminal Law paper (III) was excluded because
he did not secure 33% marks set up for the subject. 65 marks out of 200 works out to
be 32.5% point five (.5%) percent and above should be made whole number by
rounding off. It is so rounded off, 32.5% is to be treated as 33% and thereby he is
eligible for being called for interview. This method was not resorted to by the Public
Service Commission. Consequently, petitioner inter alia prays for issuance of a writ
of mandamus directing the Public Service Commission to round off fraction of marks
secured by him in Criminal Law Paper (III) as 33% and call him for interview for
selection to PCS (Judicial).
Petitioner in CWP No. 14279 of 1994 secured 446 marks out of 900. As per
Rule, no candidate shall be called for viva voce test unless he obtained at least 50%
632
qualifying marks in the aggregate in all the written papers. Since, he did not get 450
marks out of 900, he was treated as not eligible for being called for interview. 446
marks out of 900 works our at 49.5% marks. The argument is that .5% should be
rounded off to the next whole number. When the marks obtained by the petitioner is
so rounded off, it comes to 50%. Thereby, he becomes eligible to be called for
interview. By this method petitioner gets the benefit of 4 more marks. On this basis,
he prayed for assurance of a writ of mandamus directing the Public Service
Commission to treat him as having secured the minimum requisite marks for being
called for interview.
Detailed written statements have been filed by the Public Service Commission,
Punjab disputing the claims put forth by the petitioners in these writ petitions. It is
contended in the written statements that in PCS (Judicial Branch) Rules, 1951, there is
no provision allowing fraction of marks to be rounded off. Petitioner in CWP No.
12923 of 1994 filed in Criminal Law paper since he had obtained 65 marks as against
the required 66 marks. The marks obtained by him in criminal law paper is not to be
converted into percentage and then to be rounded off to the next whole number.
Candidates were required to attempt 10 questions in criminal law paper (III) and each
question carried 20 marks. Contention raised by the petitioner is that candidates were
to attempt 9 questions carrying 180 marks alone, is incorrect and all candidates did in
fact attempt 10 questions. Decision in CWP No. 4527/1993 is an authority for the
proposition that fraction of marks are not to be rounded off. Written statement
concluded by stating that petitioner is not entitled to any of the relief's asked for.
Before dealing with the issue raised before us, we consider it worth while to
refer to the provisions of Punjab Civil Service (Judicial Branch) Rules relating to the
examination of candidates. Part 'C' of the Rules deal with examination of candidates.
Rule 7 of the Rules was brought into existence by Notification
No.GSR35/Const/Art.234 and 309/Amd(25)/91 dtd 04.06.1991. It reads;
7(1) No candidate shall be credited with any marks in any paper unless he obtains at least thirty three per cent marks in it.
7(2) No candidate shall be called for the viva-voce test unless
be obtains at least fifty per cent qualifying marks in the aggregate of all the written papers:
Provided that the candidates belonging to Scheduled
Castes, Scheduled Tribes and Backward Classes categories shall be called for the viva-voce test if they obtain forty-five per cent qualifying marks in the aggregate of all the written papers.
633
7(3) The minimum qualifying marks in the language paper Punjabi (Gurmukhi Script)shall be thirty-three per cent. The standard of language paper will be that of Matriculation Examination of the Punjab School Education Board or its equivalent.
8. The merit of the qualified candidates shall be
determined by the Punjab Public Service Commission according to the aggregate marks obtained in the written papers and viva-voce;
Provided that in the case of two or more candidates
obtaining equal marks, the candidate older in age shall be placed higher in the order of merit.
From the above rule, it is seen that each candidate should get at least 33%
marks in each of the papers. The aggregate marks obtained by the candidates should
be not less than 50%. This minimum limit is relaxed in the case of candidates
belonging to Schedules Castes, Scheduled Tribes and Backward Classes to 45% in the
aggregate. Even candidates belonging to those categories should get at least 33%
marks in each of the papers. If the total marks for a paper is 100, the candidate should
secure 33 marks in that paper. Likewise if the total marks for the paper is 200, a
candidate should secure 66 marks. Candidate who has secured 65 marks as against 66
marks prescribed by the rule, wants to have the same converted into percentage 65 out
of 200 works out to be 32.5%. Thereupon, he wants the decimal to be rounded off
because it is half percent. By resorting to this course, 32.5% must be treated as 33%
and thereby make him eligible for being called for viva-voce test. In other words, by
resorting to mathematical squabbling, 65 marks should be treated as 66.
As per Rule 7(2) quoted above, a candidate will got qualified to be called for
viva-voce test if he secures at least 50% marks in the aggregate in all the written
papers. Total marks set up for written examination is 900. So, a candidate should
secure 450 marks in the aggregate in all the papers. A candidate who secured 446
marks out of 900 is certainly not eligible to be called for interview. He resorts to
ingenuous procedure. According to him, 446 marks out of 900 works out to be 49.55
percentage 55% is to be rounded off to the succeeding whole number. In this way, he
wants to be treated as one who has secured 50% marks. By this method, he gets the
benefit of four marks in the aggregate. This argument is quite attractive, but according
to us, it will result in granting premium for the failure. A candidate who failed in
getting the requisite marks is to get the deficiency made good and then to enter into
the field of choice by getting himself called for vice-voce test.
634
If the argument advanced by the counsel representing the petitioners is
accepted, it will lead to an absurd situation as described herein below:
Take the case of a candidate who has secured 65 marks as against 66 in two subjects. In those two subjects, he wants the marks secured converted to percentage. Thereby the marks secured will become 32.5%. Then it is to be rounded off making it 33%. Consequently, he gets advantage of two marks in two papers and gets through in both papers. Thereby he may secure 446 marks cut of 900 in the aggregate. The marks stained in the aggregate when converted into percentage, it will make 49.55% to be rounded of to 50%. Then he gets another advantage of four marks in the aggregate. Result of this process is that he can get benefit of 2 marks in two papers and thereafter another four marks in the aggregate to make him eligible for being called for interview/viva-voce test. At the interview, if he secures high percentage of marks, he may even top the list. This will allow him to have an undue advantage over the meritorious students who secured pass marks in all the papers and obtained 50% marks in the aggregate in all the papers.
Rule 7(1) in unmistakable terms state that a candidate should get at least 33%
marks in each of the paper. 33% is the rock-bottom marks fixed therein. So also, the
rock-bottom for being called for viva-voce test is 50% marks in the aggregate in all the
papers. According to us, the rule does not envisage the possibility of making eligible a
candidate who did not secure 33% marks in each paper and 50% in the aggregate for
being called for viva-voce test. 33% of 50% as the case may be, is not to be assessed
on the basis of rounding off the percentage of marks.
If the marks and not the percentage is rounded off, the premium will not go to
this shocking extent a person who secured 65.5 marks in a paper may claim the benefit
of rounding it off to the next whole number. The result of such procedure may not be
that shocking as the rounding off the percentage of marks. If rounding of the actual
marks alone is resorted to, then a person who secured 449.5 marks or above, alone will
be entitled to be considered as having secured 450 marks. In such a situation, the total
merit a candidate may secure in the situation detailed above is of one or maximum two
marks. Even such a benefit should not be granted in competitive examination where
academically qualified persons are competing for competitive posts. In this world of
high competition even 0.1 percentage of marks counts a lot.
In Asha Mehta Vs. State of Punjab and another 1993(3) RSJ 1, learned
Single Judge of this Court allowed a candidate who secured 65 marks put of 200 to be
treated as having obtained 33% marks by rounding it off. Principle of rounding off the
635
marks was resorted to by the learned Single Judge because of the assertion made by
the petitioner before him that Public Service Commission was adopting the procedure
of rounding off the marks in the case of selection to the post of Lecturer. No rule of
the Public Service Commission was placed before us which allows the
Commission to round off the marks for selection to any post within their
purview. Learned Advocate General, Punjab the appeared in this case on behalf of
the Public Service Commission and the State asserted that no rule relating to
recruitment to any post provides for rounding off the percentage of marks for
selecting – candidates to any post. Be that as it may, selection to the post of
P.C.S.(Judicial) is governed by special rules. They do not allow rounding off
percentage of marks. In the light of the specific provisions in the rules, this court was
not justified in directing the Public Service Commission to round off the
percentage of marks and then to treat the candidate as one who has become
eligible for being called for viva-voce test.
The learned Single Judge in the judgment observed:-
"There are two candidates from Punjab University, one getting 300 out of 600 and the other getting 298 out of 600 marks. In-terms of percentage, first one gets 50% whereas the second one gets about 49.7%. Both would be held eligible. What is the difference if the Commission itself takes the examination and awards to one candidate 300 marks out of 600 and to the other 298, why in that case the criteria of rounding off should not be adopted"?
This observation was made while comparing the principle of rounding off
adopted by the Commission in the case of Lecturers and not resorting the same
procedure in selecting candidates to PCS (Judicial).
According to us, the above example given by the learned Single Judge itself
brings out injustice to be meted out to meritorious candidates by rounding off the
percentage of marks. This will result in more disadvantage to the meritorious
candidates when we come across the provision to Rule 8 of the Punjab Civil Services
(Judicial Brach) Rules. As per that proviso, in case two or more candidates obtain
equal marks, the candidates older in age should be placed higher in the order or merit.
Decision in Asha Mehta's case (supra) was taken up in letters patent appeal,
Division Bench dismissed the same without expressing any opinion on merits. It was
then taken to the Supreme Court in Civil Appeal No. 3863of 1993. The Apex Court
dismissed the Special Leave petition observation;
636
"a question whether 32.5% marks could be rounded off to 33% is purely an arithmetical calculation, a procedure which the Public Service Commission in fairness has been adopted in all other cases. The High Court had noticed this aspect of the matter and also relied upon earlier precedent in support thereof. In that view of the matter, we do not think that it is a fit case for interference under Article 136 of the Constitution. Appeal is dismissed. No costs".
This decision of the Apex Court cannot in our considered view be treated as
one approving the judgment of the learned Single Judge. Supreme Court in the order
quoted above did not lay down any law which is to be treated as precedent.
Statements on matters other than law have no binding force. Reference may be made
to Municipal Committee, Amritsar Vs. Hazara Singh AIR 1975 SC 1087. In that case,
their Lordships have categorically stated that decisions which are essentially on
questions of fact cannot be relied upon as precedents for decision of other cases.
When a special leave petition is dismissed, it cannot be said that there has bee
a declaration of law by the Supreme Court coming under Article 141 of the
Constitution of India. Further Civil Appeal No. 3863 of 1993 was moved before the
Supreme Court not by invoking any right of appeal. Article 136 of the Constitution of
India contemplates only a petition for special leave to appeal which is in the discretion
of the Court. When an appeal filed invoking the provisions of Article 136 of the
Constitution is dismissed, it cannot be taken that the order passed by the High Court
merges into that of the Supreme Court (Reference may be made to the decision in
L.M. Navakhara Vs. Keshavrao Eknathsa Tapar AIR 1993 SC 2596). In this view of
the matter, decision of the Supreme Court in Civil Appeal No. 3863 of 1993 referred
to above, cannot be treated as one approving the decision in Asha Mehta's case
(Supra).
Learned counsel representing the petitioners brought to our notice decision of a
Division Bench of the Court in Raj Deep Singh Vs. State of Punjab 1996(4) Service
Cases Today 383. In that case, two vacancies against seats reserved for freedom
fighters were not filled up because none qualified the eligibility conditions of securing
100 marks out of 200 in the entrance test. Petitioner therein secured 99.5 marks. It
was directed to be rounded off as 100 out of 200. Thereby petitioner was found
eligible for admission to the course. Bench observed. "If it is less than half mark, it
has to be rounded off to the lower figure. Marks in points are only relevant where the
admission is to be given on the merit inter se between the students. For the purpose of
eligibility, they are required to be rounded off". We are not in a position to agree with
637
this observation. Take a case where against one vacancy two candidates were
contesting, one having secured 100 marks cut of 200 and another 99.5 out of 200. By
resorting to rounding off method, second man is also treated as having secured 100
marks out of 200. In case, if the candidate who gets the benefit of rounding off, is
older than the other, he will get higher rank. Consequently, he will have to be
admitted to the course. This will result in doing injustice to the candidate who secured
100 marks in the examination. It will also amount to treating persons who are dis-
similar. Similarly, un-likes not to be treated alike. A person who secures more marks
in the examination must be treated as more meritorious than the one who secured
lesser marks.
Learned counsel representing the petitioners advanced an arguments that by
rounding off the percentage of marks obtained by the petitioners, they are not being
selected to the post, but they are only becoming eligible for being called for viva-voce
test. On account of tails, no injustice is being caused to another candidate and,
therefore, the prayers made in these writ petitions are to be allowed. We are not at all
impressed with this argument. Persons who are not eligible for being called for viva-
voce test interview are not to be made eligible and allowed to take part in the part
viva-voce test. It will certainly result in un-equals being treated as equals.
Public Service Commission has got the right to short list candidates on the
basis of marks and no higher education or technical qualifications. This position is
settled by the Apex Court in the decision in Madhya Pradesh Public Service
Commission Vs. Nouneet Kumar AIR 1995 SC 77. To call more candidates for viva
voce test so that Public Service Commission will be able to get talented candidate is
not an appealing argument. The argument that more are to be called for viva voce test
to further public interest is according to our considered view, only to be stated to be
rejected. The acceptance of the argument that more candidates are to be called for
viva voce test by rounding off percentage of marks will result in justice to meritorious
candidates and result in clear error of law which no Court can support.
From the above discussion, it follows that law stated by the learned Single
Judge in Asha Mehta's case (Supra) and that by the Division Bench in Raj Deep
Singh's case (supra) do not represent the correct law. We disapprove the same.
Method of rounding off percentage of marks obtained in the written examination for
bringing a candidate into the field of choice for selection to a post is not warranted by
law. We are also of the considered view that for selecting candidates to any post on
competition marks obtained in the examination/test is not to be rounded off to the next
638
whole number unless the Rule governing the selection specifically provides for the
same.
In view of what has been stated above, we find no merit in these writ petitions.
They are accordingly dismissed. However, we make no order as to costs.
***
639
1998(1) SLR 165
Gurjit Singh v. State of Punjab (Pb. & Hry.)
A. Constitution of India, Articles 16 and 226 – Evidence Act, 1872, Section 115 –Writ Jurisdiction/Delay and Laches/Selection/Estoppel – Appointment to the posts of Punjab Civil Services (Executive Branch) – Selection process which commenced in the year 1993 was finalized in the year 1994 – Writ petition filed almost two years after the finalisation of the selection by the Commission and without any explanation for the long delay of two years – Petitioner guilty of delay and laches and that by itself is sufficient to reject his challenge to the nomination of respondent No.4 – After having taken part in the process of selection the petitioner must be deemed to have waived his right to challenge the nomination of respondent No.4 – Petitioner tried to take advantage of the nomination of respondent No.4 by pleading that his case was similar to that of respondent No.4 – Having done that, the petitioner cannot turn around and question the nomination of respondent No.4 in the petition filed almost two years of preparation of the merit list. (Paras 9, 11 and 12) B. Constitution of India, Article 16 – Punjab Civil Services (Executive Branch) Class-I Rules, 1976, Rules 8 and 10 – Government of Punjab Allocation of Business Rules, 1986, Rules 2 and 4 – Government of Punjab Allocation of Business Rules, 1994 – Appointment – Nomination of respondent No.4 – Department of Health and Family Welfare bifurcated into two Departments – Department was headed by one Secretary – Respondent No.4 was working in the office of the Secretary, Department of Health – Thus he will be deemed to have been working in an office subordinate to both the Ministers – Therefore, there is no infirmity in the nomination of respondent No.4 – Petitioner claiming that he had a right to be appointed in terms of the circular dated 22.3.1957 as his name was included at Serial No.10 in the merit list prepared by the Commission – Held that a candidate does not acquire an absolute and undefeasible right to be appointed in the service merely on the basis of inclusion of his/her name in the waiting list – Thus the petitioner, whose name could at best be treated as included in the waiting list has no right to be appointed against the posts which became available after the initiation of the process for recruitment. (Paras 13, 15 and 18)
***
640
JT 2000 (Suppl.2) SC 526
Praveen Singh v. State of Punjab & Ors.
Though interview undoubtedly is a significant factor in the matter of appointments and it plays a strategic role, but it also allows creeping in of a lacuna rendering the appointments illegitimate. Obviously it is an important factor but ought not to be the sole guiding factor since reliance thereon only may lead to a "sabotage of the purity of the proceedings". There can therefore be no doubt that the viva voce test performs a very useful function in assessing the personal characteristics and traits and in fact tests the man himself and is therefore, regarded as an important tool along with the written examination (emphasis supplied). (Para 9) BANERJEE J.
1. Arbitrariness being opposed to reasonableness is an antithesis to law. There
cannot, however, be any exact definition of arbitrariness neither can there be any
straitjacket formula evolved therefore, since the same is dependent on the varying
facts and circumstances of each case.
2. The basic facts pertaining to the appeal against the judgment of the High Court
depict that the writ petition of the appellant was dismissed by the High Court on the
ground that there is no infraction of law neither the Public Service Commission in the
State of Punjab has deviated from the criteria laid down for selection of candidates for
the post of Block Development and Panchayat Officer. Incidentally the grievance of
the writ petitioner-appellant pertains to violations of the equality clause under Articles
14 and 16 of the Constitution read with provisions of Punjab Development and
Panchayat Class-II (Service) Rules, 1974.
3. On the factual score it appears that the Punjab Public Service Commission in
June, 1993 issued an advertisement for 26 vacancies of Block Development ad
Panchayat Officers but before the process of selection could be finalised, the
Government of Punjab filled up the vacancies through ad-hoc appoints by reason
wherefore, the Service Commission considered it fit not to proceed with the selection
any further. The records depict that these ad-hoc appointments, however by the order
of the High Court in a petition under Article 226 stands quashed and the appeal there
from was dismissed by this Court. This Court, however, while rejecting the appeal
was pleased to direct the Public Service Commission (Punjab) to complete the process
of selection by 9th July, 1995and in terms therewith, the Service Commission issued a
corrigendum to the advertisement but the vacancies were enhanced from 28 to 44 for
reasons of exigencies of the situation. It is against this corrigendum to the
advertisement, about 4,500 people appeared in written test and subsequently roll
numbers of 130 candidates only were published, being eligible to appear in the viva
641
voce test. On 9th July, 1995 the final result was announced and the names and roll
numbers of candidates who were found suitable for appointments were published in
order of merit. The petitioner's name, however, did not figure in the merit list, which
stands challenged in the writ petition before the High Court but the same, however,
stands negated by the High Court and hence the appeal before this court.
4. The bone of contention raised in the appeal is the non-consideration of the
marks secured by the candidates in the written examination while determining the
overall merit of the candidates and the real merit has been ignored at the time of
preparation of select list by the Service Commission and in this context, strong
reliance was placed on the information sheet as circulated by the Service Commission,
relevant extracts of which are as below:
"EXAM. 1/93 PUNJAB PUBLIC SERVICE COMMISSION, PATIALA
Information Sheet and Instructions to Candidates BLOCK DEVELOPMENT AND PANCHAYAT OFFICERS EXAMINATION, 1993
IMPORTANT NOTE:-
CLOSING DATE ............................................................. Vacancies and Reservations: ................................................................. Qualifications: .................................................................... Scheme of Examination:
3. There will be four papers for written test (a) General Knowledge including
Everyday Science; (b)General English/Eassy; (c) Community Development Panchayat
Raj and Agricultural Development; (d) Punjabi Language test of Matriculation
Standard, followed by viva voce test. The qualifying standard and syllabus etc. is give
in the rules attached.
12(1) The examination will consist of the following subjects and marks indicated
against each:
Sl. No. Subject Standard of the papers Maximum
marks
1. English/English
BA/BSc. of the Punjab University 100
2. Punjabi (in Gurmukhi script)
Matriculation of Punjab School Education Board 50
3. General Knowledge BA/BSc. of the Punjab University
100
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4.
Community Development, Panchayati Raj and Agricultural Development
As per detailed Syllabus in para 6 below 100
5. Viva voce - 50
2. No candidate shall be eligible to appear in the viva voce test unless he obtains
33 per cent marks in each paper and 45 per cent marks in aggregate.
5. Paragraph 12(1) of the document thus expressly provides that the examination
shall consist of four different subjects with 100 marks each for three subjects and fifty
marks (50) stand earmarked for the 4th vernacular (Punjabi in Gurmukhi script)
totalling 350 marks and further 50 marks for viva voce test. The essentiality of viva
voce test, however, stands established by reason of express narration under the scheme
of examination viz. "followed by viva voce test". In the event of there being a written
test for elimination. The scheme of the examination would not have been detailed in
the manner as it has been so stated. Paragraph 3 of the instructions refers to the Rules
for laying down the qualifications and the syllabus for the examination. Admittedly,
these Rules have been framed by the Governor of Punjab in exercise of his power
under the provision to Article 309. Rule 5 of the Rules referred to the qualification
that a person ca be appointed to the service who possesses the educational and other
qualifications specified in Appendix B. In Appendix B, the posts of Block
Development and Panchayat Officers appear at item no.20 and the qualifications
mentioned therein are as below:
"(i) Graduate of a recognised University; Preference to Graduate in Agriculture;
(ii) Knowledge of Punjabi language upto Matriculation or equivalent standard;
(iii) Candidates will be required to qualify the following written tests at the time of recruitment; (i) General Knowledge 100 marks (ii) General English/Essay of
B.A. Standard 100 marks (iii) Community Development Panchayati Raj and Agricultural Development 100 marks (iv) Punjabi language test of
Matriculation Standard 50 marks (v) Viva voce 100 marks
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"The qualifying standard in the test will be 33% pass marks in each paper and
45% in the aggregate".
6. It is on the basis of the Rules together with the information sheet as noticed
herein before, that the High Court came to the conclusion that there is no arbitrariness
in the matter of selection of candidates. The said finding stands challenged before us
principally on the ground that there is existing a dual requirement viz., written test as
also the viva voce test and the marks obtained therein in both counts ought to have
formed part of the process of determining the merit and the Public Service
Commission had no authority or jurisdiction to effect the selection solely on the basis
of the performance of the candidates at the viva voce examination. The respondents,
however, contended that since it was not possible to interview about 4,500 candidates,
the Public Service Commission resorted to a written elimination test in order to
facilitate the interview process or the viva voce test. It was contended had been called
for the viva voce test out of 4,500 approximately, as against 44 vacancy posts. A short
digression from the facts however may not be totally unjustified at this juncture by
reason of enormity of the issue of available employment opportunity. 4,500 persons
applied for 44 vacancies a rather sordid state of affairs employment opportunities are
so meager as compared to the need and the situation has reached its optimum without
any indication even of a descending trend. Needless to record that this is not in Punjab
only but this is reflected in every State in the country – in some States the ratio is still
higher – we are however, not expressing any opinion but recording factum only so as
to focus the magnitude of the problem.
7. Turning on to the contentions as raised by the respondent herein that the
written test, on the wake of the documentary evidence available in the records, cannot
but be termed to be a mere qualifying test and since Service Commission has
proceeded to select the candidates on the basis of the performance of the candidates at
the viva voce examination the actions cannot be faulted in any way neither can the
same be ascribed to be arbitrary or capricious.
8. Relying upon the aforesaid however, the High Court observed that even though
the Rule is not properly articulated but on a rational interpretation, there is no escape
from the conclusion that passing of the written test with 33% marks in each paper and
45% marks in aggregate does not ipso facto entitle a candidate to be called for viva
voce/interview. The High Court, however, proceeded on the right of the employer for
short listing and screening since the same has been recognised by the law courts
keeping in view the ground reality, as it is otherwise a well-nigh impossibility for the
644
selecting agency to interview all the candidates. The High Court also took into
consideration the number of candidates and the time that shall be otherwise consumed
in the event of interview of a larger number of people and as such the High Court
came to the conclusion that the Punjab Public Service Commission was justified in
adopting a rational yardstick for short listing the number of candidates for viva voce
test and no arbitrariness or illegality can be attributed therein and the factum of
judging the merits of the candidates on the basis of viva voce test being prevalent in
the Punjab Public Service Commission since the year 1978 has also been taken into
consideration by the High Court. While it is true that the administrative or quasi-
judicial authority clothed with the power of selection and appointment ought to be left
unfettered in adaptation of procedural aspect but that does not, however, mean and
imply that the same would be made available to an employer at the cost of fair play,
good conscience and equity. This Court in the case of J. P. Kulshreshtha & Ors. V.
Chancellor, Allahabad University & Ors. [AIR 1980 SC 2141] did recognise the
undetectable manipulation of results being achieved by remote control tacits and
masked as viva voce test resulting in the sabotage of the purity of proceedings. This
Court held "interviews as such are not bad but polluting it to attain illegitimate ends is
bad".
9. What does Kulshreshtha's case (Supra) depict? Does it say that interview
should be the only method of assessment of the merits of the candidates? The answer
obviously cannot be in the affirmative. The vice of manipulation, we are afraid cannot
be ruled out. Though interview undoubtedly is a significant factor in the matter of
appointments and it plays a strategic role but it also allows creeping in of a lacuna
rendering the appointments illegitimate. Obviously it is an important factor but ought
not to be the sole guiding factor since reliance thereon only may lead to a "Sabotage of
the purity of the proceedings". Along catena of decisions of this Court have been
noted by the High Court have been noted by the High Court in the judgment but we
need not dilate thereon neither we even wish to sound a contra note. In Ashok
Kumar's case [Ashok Kumar Yadav V. State of Haryana : 1985 (3) SLR 200] this
Court, however, in no un-certain terms observed. There can therefore be no doubt that
the viva voce test performs a very useful function in assessing the personal
characteristics and traits and in fact, tests the man himself and is therefore regarded as
an important tool along with the written examination (emphasis supplied).
10. The situation envisaged by Chinnappa Reddy, J. in Lila Dhar's case [Lila Dhar
Vs. State of Rajasthan: AIR 1981 SC 1777] on which strong reliance was placed, is
totally different from the contextual facts and the reliance thereon is also totally
645
misplaced. Chinnappa Reddy J discussed about the case of services to which
recruitment has necessarily been made from persons of mature personality and it is in
that perspective it was held "interview test may be the only way subject to basic and
essential academic and professional requirements being satisfied". The facts in the
present context deal with Block Development Officers at the Panchayat level. Neither
the job requires mature personality nor the recruitment should be on the basis of
interview only having regard to the nature and requirement of the concerned jobs. In
any event, Service Commission itself has recognised a written test as also viva voce
test. The issue, therefore, pertains as to whether on a proper interpretation of the
Rules read with the instructions note, the writ ten examination can be deemed to be a
mere qualifying examination and the appointment can only be given through viva voce
test – a plain reading of the same, however, would negate the question as posed.
11. A close look at the qualification as prescribed in the information sheet,
however, in our view would depict otherwise. The qualifications prescribe that the
candidates will be required to qualify for the following written test at the time of
recruitment and the qualification standard in the test has been fixed to be at 33% pass
marks in each paper with 45% however in the aggregate (emphasised) and paragraph 4
of the information sheet, as above, in no uncertain terms records that no candidate
shall be eligible to appear in the viva voce test unless he obtains 33% marks in each
paper and 45% marks in the aggregate.
12. Reading the two requirements as above, in our view, question of having the
written test written off in the matter of selection, does not and cannot arise. Had it
been the intent of the Service Commission, then and in that event question of there
being a totally of marks would not have been included therein and together with
specified marks for viva voce tests, would not have been there, neither there would
have been any requirement of qualifying pass marks nor there would have been any
aggregate marks as noticed above.
13. Further, in the event, the interview was the sole criterion and the written test
being treated as qualifying test, the Public Service Commission ought to have clearly
stated that upon completion of the written elimination test, selection would be made
on the basis of the viva voce test only as is available in the decision of Ashok & Ors.
V. State of Karnataka [JT 1991 (4) SC 160=1992 (1) SCC 28]. Be it noted that there
is always a room for suspicion for the common appointments if the oral interview is
taken up as the only criterion. Of course, there are posts and posts, where interviews
can be a safe method of appointment but to the post of a Block Development Officer
646
or a Panchayat Officer wherein about 4500 people applied for 44 posts, interview
cannot be said to be a satisfactory method of selection though however it may be a
part thereof. I the factual score we have the advantage of having the Rules prescribing
the mode and method of appointments and specific marks are earmarked for written
examinations of various subjects together with totality of marks for viva voce test. As
a matter of fact, out of 450 marks, only 50 marks have been allotted for interview by
the Service Commission itself – why were these 400 marks allotted for a written
examination in four different subjects, if interview was to be the guiding factor?
There has been however, no answer to the same excepting that the Court ought not to
interfere in the matter of selection process in the absence of mala fides – true it is that
in the event the selection is tainted with mala fides, it would be a plain exercise of
judicial power to set right the wrong – but is it also realistic to assume that when the
Commission, in clear and categorical language, recorded that 450 marks would be the
total marks for the examination and out of which only 50 marks are earmarked for
viva voce test, the Commission desired that these 50 marks would be relevant and
crucial and the other 400 marks would be rendered totally, superfluous and of no
effect at all? The language used is rather plain and is not capable of the interpretation
as is being presented before us during the course of hearing and as has been held by
the High Court. Reliance on 50 marks only and thereby avoiding the other 400 marks
cannot, in our view, having due regard to the language used, be said to be reasonable
or devoid of any arbitrariness.
14. The action of the respondent-Commission thus is wholly unreasonable, unfair
and not in accordance with the declared principles. Appointment procedure is evident
from the documentary evidence disclosed in the proceedings and the Commission
ought to have taken note of the written examination results as well. As a matter of
fact, the High Court while recording its acceptance to the method of selection on the
basis of the viva voce test only, was pleased to observe as below:
"However, we consider it absolutely imperative to observe that the Governments should get the Rules examined and make proper amendment so that its intention of making distinction between qualifying test and viva voce test does not remain obscure. We also direct the PPSC to take extra precautions while issuing any future advertisement so that no inconsistency remains between the Rules and the contents of the advertisement".
15. The High Court admittedly therefore, found inconsistency and obscurity in the
entire process and as a matter of fact, the High Court has suggested incorporation of
proper amendments in the Rules so as to avoid confusion and obscurity. We are
647
however, constrained to note that having come to a finding about the inconsistency ad
obscurity in the process, the High Court thought it fit to decry the claim of the writ
petitioner being the appellant herein, on the plea of the employer's right but the
documents through which the right flows, indicates a contra situation and as such the
action suffers from the vice of arbitrariness and unreasonableness warranting
intervention of this Court. On the wake of the above, the order of the High Court
stands set aside and quashed. Consequently the appointments are also set aside. The
Public Service Commission is directed to complete the process of selections in terms
of the existing Rules so that both the written and the viva voce test be taken into
consideration for the purpose of effecting appointments. It is made clear that no
further advertisement or examination shall take place but reconsideration of the entire
process be effected upon due reliance on the written as well as viva voce test. The
process be completed with in a period of 3 months from the date thereof. It is further
made clear that the appointments if any already made shall continue out shall be
subject to the further results which may be declared by the Public Service Commission
in regard to filling up of the posts of Block Development and Panchayat Officers. The
appeal thus stands allowed. There will however, be no order as to costs.
***
648
2002 (3) SLR 310 Sansar Chand Atri Vs. Stae of Punjab & Anr. (S.C.)
A. Punjab Recruitment of Ex-Servicemen Rules, 1982, Rules 2(e) and 3 – Army
Rules, 1951, Rule 13(3)(ii)(iv) – "Ex-Serviceman" – A person in the Army who has
earned pension after putting in the requisite period of service before leaving Army
whether "at his own request" or on being released on any ground should be treated as
an ex-serviceman – No rational basis for excluding those discharged or released from
service after earning pension – It is only after considerable period of satisfactory
service member of armed forces became entitled to pension - Mere fact that if he
voluntarily quits the service with the consent as employee, he should not be placed in
a disadvantageous position for claiming the benefit of reservation for ex-serviceman.
(Para 10)
B. Constitution of India, Articles 14, 16 and 226 – Punjab Recruitment of Ex-
Servicemen Rules, 1982, Rules 2(e) and 3 – Ex-servicemen – Reservation – All ex-
defence service personnel are to be treated as a class separate from other candidates
for the purpose of offer of jobs and no differentiation or discrimination can be made
amongst them – If the contention that appellant has been discharged from Army at his
own request is accepted then it will create a class within a class without rational basis
and therefore, becomes arbitrary and discriminatory. (Para 9)
***
649
JT 2003 (5) SC 241 Vijay syal and Anr. V. State of Punjab & Ors.
SERVICE LAWS
Punjab subordinate services – Selection of Assistant District Transport Officer – Selection Board advertising 12 posts and conducting written test – Board first declaring 78 persons to be successful in the test – Subsequently Board lowering the standard and declaring 40 more candidates to be successful – In the general category six persons ultimately selected for appointment, four from the first lot of 78 candidates and two from the second lot of 40 candidates – Appellants who were unsuccessful filing writ for quashing the select list and for considering their claims on merit from amongst the candidates originally invited for interview – High Court dismissing the writ. Whether the selections were invalid. Whether lowering of the standard subsequently and declaring 40 more candidates to be successful in written test correct. Held appellants having made misrepresentation to the Court with regard to appointment of marks for written test and interview and the selected candidates having been in service continuously for almost five years no interference with the judgement of High Court called for. Further the recruitment criteria having been published and appellants having participated in the interview cannot be allowed to turn back and challenge the criteria determined for selection. Appeal dismissed with cost. SHIVARAJ V. PATIL, J. 1. These appeals are directed against the common judgment and order dated
4.1.2001 passed by the Division Bench of the High Court. The controversy relates to
selection/non-selection of candidates to the posts of assistant district transport officer
(for short ‘ADTO’). The Punjab Subordinate Selection Board advertised 12 posts of
ADTOs on 15.5.1995. Out of them, 7 posts were for the general category, 4 for
SC/ST and one was reserved for ex-servicemen. A written test was conducted on
24.3.1996, the result of which was declared on 1-4-1998, declaring 78 persons
successful. Out of these 78 persons, 61 belonged to general category, 15 belonged to
SC/ST category and 2 belonged to category of ex-servicemen. Later on 22-4-1998, 40
more candidates were declared successful by lowering the lowering the standard. Out
of these 40 candidates, 21 belonged to general category, 13 to SC/ST category and 6 to
ex-servicemen category, Criteria for selection were framed on 22-4-1998; final result
was declared on 15-5-1998 and the appointments were made on 18-5-1998. Out of the
candidates selected and appointed. 6 were from the general category, 3 were from
SC/ST and 1 from ex-servicemen category. Out of the 78 candidates whose result was
declared on 1-4-1998, 4 candidates belonging to general category were selected.
However, out of 40 candidates whose result was declared later, 2 candidates belonging
to general category were selected. The appellants in these appeals approached the
High Court by filling writ petitions for quashing the select list of the candidates
published by the authorities in Tribune dated 23-5-1998, for issuing writ of mandamus
directing the respondents to consider their claim on the basis of their merit from
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amongst the candidates originally invited for interview and to issue a writ in the nature
of prohibition restraining the respondents from giving effect to the selection made. It
may be mentioned here itself that the selected candidates were appointed on 18-5-
1998 and having joined the services, they are continuing in service. The High Court
considering the rival contentions on their relative merits and after perusing the records
did not find any merit in the writ petitions. Consequently, they were dismissed by the
impugned common order. Hence, these appeals.
2. Appellant no. 1 in civil appeal no. 812 of 2002 argued his case as party-in
person and submissions were made by the learned counsel on behalf of the other
appellants. We may make it clear at the outset that none of the appellants belonged to
the category of either SC/ST or ex-servicemen and their claim is also not against these
categories. Hence, we consider it unnecessary to consider the validity of selection of
the candidates made in these two categories. In other words, we confine our
consideration to the validity of selection of the candidates made in the general
category. Mainly, the submissions made on behalf of the appellants were that after
declaration of the result of the written examination on1-4-1998, standard could not
have been lowered for making other 40 candidates eligible for the purpose of
interview: criteria could not have been framed after declaration of result of the written
examination; maximum 21 candidates could have been called for interview in the ratio
of 1:3 in the general category on the basis of the merit of the written examination
whereas out of 78 candidates whose result was declared on 1-4-1998, more than 60
candidates were from the general category. In this regard, reliance was placed on
Ashok Kumar Yadav & Ors. State of Haryana and Ors.
3. Learned additional solicitor general and learned senior counsel for the
respondents at the outset submitted that they have preliminary objection for the very
entertaining of these appeals and considering the contentions advanced on behalf of
the appellants on merits having regard to their conduct. According to them, the
appellants made deliberate misrepresentation with regard to the allocation of marks
stating that 150 marks were written test and 100 marks for interview. Further, mala
fides were attributed to authorities on the basis of the relation and political influence,
which they gave it up before the High Court but again reiterated in the SLPs.
According to the learned counsel, these two grounds are good enough to dismiss the
appeals by revoking leave granted with-cut examining them on merits. Although, we
find justification in these submissions but having heard the parties at length, we
consider these appeals on the merits of the contentions as well. On behalf of the
respondents, further submissions were made explaining the criteria fixed, in what
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circumstances, more number of candidates were called for interview and how the
selection made was fair and proper. According to them, mere calling more number of
candidates for interview did not vitiate the selection made having regard to the facts
and circumstances of the case; at any rate, the appellants being lower in merit, even
otherwise, could not get benefit. According to the learned counsel for the respondents,
the impugned judgment of the High Court is perfectly valid and justified. They also
submitted that pursuant to the selection made, the selected non-official respondents
have been continuing in service since May, 1998, i.e., they are continuing in service
for about 5 years by now and as such these are not the fit cases for exercise of
jurisdiction under Article 136 of the Constitution of India to interfere with the
impugned judgment and order.
4. It is useful to reproduce the chart furnished at the time of hearing indicating
names of candidates, their categories, qualification, marks obtained in written test as
well as interview and the total marks:-
C.A. No.
Sr. No.
Name List* Cate- Gory
Qualification Marks
Written Test
Inter-view Test
Total
812/02 1. Umesh Kumar, Appellant
1 G 2(MA-II) 124 12.5 138.5
2. Vijaya Kumar, Appellant
1 G 3(MA-II) 126 11.5 140.5
3. Karanbir Singh, Resp.4
1 G 1(Sports) 127 20.5 148.5
4. Gurinderjit Singh, Resp.5
1 G - 127 19 146
5. Tarlochan Singh, Res.6
1 G - 124 21.75 145.75
6. Manjit Singh, Resp.7
1 G 2(MA-II) 123 20.25 145.25
7. Gurcharan Singh, Resp.8
II G 1(NSS) 120 22.5 143.5
8. Angrej Singh Resp.9
II G - 120 22.87 142.87
9. Sukhwinder Kumar, Res.10
I SC 1(NSS/NCC) 121 19.37 141.37
10. Dhien Singh Resp.11
I SC 2(MA) 119 19.5 140.5
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11. Karam Singh, Resp.12
I SC 2(MA/LLB) 124 15.75 141.75
12. Jaswant Singh, Respt.13
II SC 5(MA=2 NCC-3)
114 21.5 140.5
5986/02
ZulfikarAli, Appl.
I G 2(LLB) 122 12.25 136.25
5985/02
Gurdeep Singh, Appl.
I G - 122 14.25 136.25
937/02 Sarpinderjit Singh, Appl.
I G 2(MA) 128 11.5 141.50
Not selected but better than all the Appellants I G 121 21.75 142.75Ram Nath
Paramjit Singh I G 123 19 142
“Note- The names of the candidates from among 78 candidates called for interview for the first time are shown as in List- I and names of the candidates from among 40 candidates called for interview are shown as in List – II.
5. In para 8 of the writ petition no. 7349 of 1998 filed by the appellant no. 1 in
civil appeal no. 812 of 2002, it is averred that he came to know on inquiry that the
entire selection had been made in a totally arbitrary and biased manner to help certain
selected candidates; respondent no. 8 is the nephew of Shri Jasdev Singh Sandhu,
chairman of the respondent- Board; sister’s husband of Harmail Singh, Minister for
Public Works in the present government is one of the selected candidates; Shri Angrej
Singh, respondent no. 9 is politically very-well connected and is a close friend of
sitting MLA. In order to help these persons who did not come within the first list,
second list was issued. In para 10 of the writ petition, it is asserted that 100 marks
were kept for interview as against the total marks of 250 (150 marks for written test +
100 marks for interview) which is totally arbitrary. Thus, 40 % marks have been
allocated for interview as against 12.2% which are permissible in law. In the
replication to the written statement filed, in para 8, it is stated that relationship of
respondent no.8 with Shri Jasdev Singh Sandhu, the chairman, is concerned, it is fairly
conceded that this has been mentioned wrongly but not with mala fide intention. In
the impugned judgment, the question of mal fide is not dealt with, obviously, in view
of the replication filed by the appellants to the written statement before the High Court
as noticed above. In the impugned judgment, the question of allocation of 100 marks
for interview were excess, is also not dealt with as it does not appear to have been
urged on behalf of the appellants. Criteria for selection were framed on 22-4-1998.
The criteria for selection which was produced as annexure-R-1 in the writ petition
before the High Court clearly indicated total marks for selection 240, out of them 200
marks were allocated for competitive test, 15 marks for additional educational, sports
and other qualifications and 25 marks were allocated for interview. The appellants
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were very much aware of annexure R-1. The impugned order shows that the
grievance of the appellants was in regard to the publication of the criteria, subsequent
to declaration of the result of written examination; not that 100 marks allocated for
interview were excessive. With all this, it is painful to note that the appellants in civil
appeal no. 812 of 2002 on page K of List of dates stated that 100 marks were kept for
interview as against the total marks of 250 (150 marks for written test + 100 marks for
interview). It is further stated that the selection has been made in totally biased
manner as the nephew of the chairman of the respondent-Board, the sister’s husband
of the Minister for Public Works and a friend of known political families in Punjab,
have been appointed. It may be stated here itself that those persons were neither made
parties nor any particulars were given touching mala fides. At page 34 of SLP in
paras K and L, same things are repeated as to the allotment of 100 marks for interview
and also mala fides attributed to certain persons to accommodate the private
respondents. It is further stated that arbitrarily 100 marks were set apart for interview
out of 250 marks in order to help them only and that the entire selection was arbitrary.
This is also the state of affairs even with regard to the other appellants in other
appeals. At the hearing when pointed out, the appellants regretted for the wrong
statements and misrepresentation made but added that they were not with any mala
fide intention. Looking to the background, specific statements made in the replication
filed by the appellant before the High Court, being aware of the criteria that the marks
for interview were only 25, having given up mal fides and having not urged the same
before the High Court and taking note that the appellants have sworn affidavits in
support of the SLPs that they understood the accompanying synopsis, list of dates and
paragraphs contained in special leave petitions and that they were fully conversant
with the facts of the case and that the contents of the affidavit were true to their
Knowledge and nothing material has been concealed therefrom and no part of it is
false, we find it difficult to accept that the statements were made in the SLPs
bonafidely. It appears to us that these statements were made in SLPs to get leave
and/or interim orders on the ground of excessive marks allocated for interview and
mala fides. In our view, this conduct of the appellants is condemnable and we may
straightaway say without any hesitation that they have disentitled themselves for any
relief on this score.
6. A bench of three learned judges of this Court in Hari Narain V. Badri Das
revoked the special leave granted to the appellant and dismissed the appeal for making
inaccurate, untrue and misleading statement in SLP observing that “ It is of utmost
importance that in making material statements and setting forth grounds in
applications for special leave, care must be taken not to make any statements which
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are inaccurate, untrue or misleading. In dealing with application for special leave, the
Court naturally takes statements of fact and grounds of fact contained in the petitions
at their face value and it would be unfair to betray the confidence of the Court by
making statements which are untrue and misleading. That is why we have come to the
conclusion that in the present case, special leave granted to the appellant ought to be
revoked. Accordingly, special leave is revoked and the appeal is dismissed. The
appellant will pay the costs of the respondent.’’
7. Again in Rajabhai Abdul Rehman Munshi v. Vasudev Dhanjibhai Mody, this
Court observed that “ exercise of the jurisdiction of the Court under Article 136 of the
Constitution is discretionary; it is exercised sparingly and in exceptional cases, when a
substantial question of law falls to be determined or where it appears to the Court that
interference by this Court is necessary to remedy serious injustice. A party who
approaches this Court invoking the exercise of this overriding discretion of the Court
must come with clean hands. If there appears on his part any attempt to overreach or
mislead the Court by false or untrue statements or by withholding true information
which would have a bearing on the question of exercise of the discretion, or if the
discretion has been exercised in revoking the leave to appeal granted even at the time
of hearing of the appeal.”
8. In the same judgment, Hidayatullah, J. concurring with judgment of Shah J.
delivered on behalf of himself and Sarkar J., added that “ I have considered the matter
carefully. This is not a case of a mere error in the narration of facts or of a bona fide
error of judgment which in certain circumstances may be considered to be venial
faults. This is a case of being disingenuous with the court by making out a point of
law on a suppositious state of facts, which facts, if told candidly, leave no room for the
discussion of law. The appellant has by dissembling in this Court induced it to grant
special leave in a case which did not merit it. I agree, therefore, that this leave should
be recalled and the appellant, made to pay the costs of this appeal.”
9. Yet again, a bench of three learned judges of this Court in Udai Chand V.
Shanker Lal & Ors. revoked the special leave and dismissed it after referring to the
decisions in Hari Narain and Rajabnai Abdul Rehman Munshi (supra). It was further
observed that this Court cannot permit abuses of the process of law and of law courts.
10. However, even otherwise we proceed to examine on the merits of the
contentions urged on either side at length and with all seriousness.
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11. From the chart extracted above in regard to the marks secured by the appellants
and the respondents, it is evident that respondents 4-7 (in general category) were in the
first list i.e., they were from out of the 78 candidates. The appellants cannot make
grievance as far as these candidates are concerned in the sense that they were in the
first list and not in the second list so as to hive them advantage. No doubt respondents
8 and 9 (in general category) were called for interview in the second list out of 40
candidates. Admittedly, the marks secured by these respondents are more than any of
the appellants in the general category. It is pointed out that two candidates namely
Ram Nath and Paramjit Singh in general category called in the first list of the
interview have secured more marks than all the appellants. Even if the respondents 8
and 9 were to be denied appointment on the ground that they were called for the
interview in the second list, the position of the appellants could not improve. One
more fact to be kept in mind is that two candidates belonging to scheduled castes
category having secured higher marks than the appellants could be selected in the
general category. Thus, even otherwise the appellants would not succeed in getting
selected for appointments. Merely because 40 more candidates were called for
interview with-out anything more, selection of the candidates does not get vitiated
particularly so when malafides were given up and 100 marks were not allocated for
interview as wrongly stated by the appellants.
12. As can be seen from the difference of marks secured by the candidates in
interview, it does not appear abnormal or per se does not smell of any foul play or
does not appear patently arbitrary. The lowest of the marks given in the interview are
11.5 and the highest are 22.87. Further marks secured in the interview and the marks
secured in written test are also not grossly disproportionate. This apart, out of total
marks of 240, only 25 marks were earmarked for interview. So 25 marks for
interview out of 240 as against 200 for written test and 15 marks for qualification and
other activities do not admit an element of arbitrariness or give scope for use of
discretion by members of the interview committee recklessly or designedly in giving
more marks to show favour in interview so as to give an advantage or march to an
undeserving candidate of their choice over others who had shown extraordinary merit
in written test. From the chart, we find among the candidates, marks secured in the
written test were between 119 to 128 except in one case belonging to scheduled castes
were 114. This apart, the marks secured in the interview are based on the assessment
of the interview committee. Normally, it is not for the court to sit in judgment over
such assessment and particularly in the absence of any mal fides or extraneous
considerations attributed and established. The interview marks of 25 as against total
marks of 240, cannot be taken as excessive. It comes to 10.4 %. Possibly the
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selection would have been vitiated, if the marks for interview were 100 as against 150
marks for written test as sought to be made to be made out. Unfortunately, for the
appellants, their misrepresentation in this regard, is unfolded very clearly as stated
above. Further, the appellants, knowing the criteria fixed for selection and allocation
of marks, did participate in the interview; when they are not successful, it is not open
to them to turn around and attack the very criteria. The High Court in the impugned
order has found that the criteria contained in annexure R- 1 filed in the writ petition
was published and that such criteria was adopted earlier also in respect of other
selections.
13. The appellants heavily relied on a decision of this Court by four learned judges
in Ashok Kumar Yadav’s case (supra) in support of their contentions that where
there is a composite test consisting of written examination followed by viva voce test,
the number of candidates to be called for interview on the basis of marks obtained in
the written examination should not exceed twice or at the highest thrice the number of
vacancies to be filled; further marks allocated to viva voce test should not be more
than 12.2 %. The learned counsel for the respondents from the very judgment pointed
out that it does not advance the case of the appellants having regard to the facts and
circumstances of the cases at hand. In the aforementioned case of Yadav, the facts
were that in October, 1980, Haryana Public Service Commission (HPSC) invited
applications for recruitment to 61 posts in Haryana Civil Service (Executive) and
Allied Services. The recruitment was governed by the Punjab Civil Service
(Executive Branch) Rules, 1930 as applicable in the State of Haryana. In response to
that advertisement issued by HPSC, about 6000 candidates applied for recruitment and
appeared at the written examination. Out of them, over 1300 obtained more than 45
% marks and were called for interview. HPSC invited all the 1300 and odd
candidates for interview and the interviews lasted for almost half a year. Though
originally, applications were invited for recruitment to 61 posts, the number of
vacancies during the time taken in the written examination and viva voce test rose to
119. It seems there were some candidates who had obtained very high marks at the
written examination but owing to securing poor marks in the viva voce test, they could
not come within first 119 candidates and consequently they were not selected.
Aggrieved by the non-selection, they filed writ petitions in the High Court challenging
the validity of the selection. It was contended that the marks given in the viva voce
test should be ignored and selection should be made only on the basis of the marks
obtained by the candidates at the written examination. The writ petitions were
allowed by the Division Bench of the High Court. Hence, the appeals were filed
before this Court aggrieved by the judgment of the High Court. The High Court took
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the view that there was reasonable likelihood of bias vitiating the selection process
based on the fact that though only 61 vacant posts were advertised, over 1300
candidates representing more than 20 times the number of available vacancies were
called for viva voce test. The Division Bench pointed out that in order to have proper
balance between the objective assessment of a written examination and the subjective
assessment of personality by a viva voce test, the candidates to be called for interview
at viva voce test should not exceed twice or at the highest, thrice the number of
available vacancies. Since the candidates were called 20 times the number of
available vacancies, the High Court held that the selection process was vitiated. This
Court disagreed with this conclusion reached by the Division Bench of the High
Court. While doing so, this Court observed that HPSC was not right in calling for
interview all the 1300 and odd candidates; it was difficult to see how a viva voce test
for properly and satisfactorily measuring the personality of a candidate can be carried,
if over 1300 candidates were to be interviewed for recruitment to a service; if viva
voce test was to be carried out in a thorough and scientific manner, to arrive at a fair
and satisfactory evaluation of the personality of a candidate, the interview must take
anything between 10 to 30 minutes. This Court, while considering the question
whether selection made by HPSC after calling 1300 candidates for interview was
vitiated on that account, in paragraph 21, held thus:-
“ we do not think that the selections made by the Haryana Public Service Commission could be said to be vitiated merely on the ground that as many as 1300 and more candidates representing more than 20 times the number of available vacancies were called for interview, though on the view taken by us that was not the right course to follow and not more than twice or at the highest thrice, the number of candidates should have been called for interview. Something more than merely calling an unduly large number of candidates for interview must be shown in order to invalidate the selections made. That is why the Division Bench relied on the comparative figures of marks obtained in the written examination and at the viva voce test by the petitioners the first 16 candidates who topped the list in the written examination and the first 16 candidates topped the list on the basis of the combined marks obtained in the written examination and the viva voce test and observed that these figures showed that there was reasonable likelihood of arbitrariness and bias having operated in the marking at the viva voce test. Now it is true that some of the petitioners did quite well in the written examination but fared badly in the viva voce test and in fact their performance at the viva voce test appeared to have deteriorated in comparison to their performance in the year 1977-78. Equally it is true that out of the first 16 candidates who topped the list in the written examination. 10 secured poor rating in the viva voce test and were knocked out of the rocking while 2 also got low marks in the viva voce test but just managed to scrape though to come within the range of selection. It is also true that out of the first 16 candidates who topped the list on the basis of the combined marks obtained in the written examination and the viva
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voce test, 12 could come in the list only on account of high marks obtained by them at the viva voce test, though the marks obtained by them in the written examination were not of sufficiently high order. These figures relied upon by the Division Bench may create a suspicion in one’s mind that some element of arbitrariness might have entered the assessment in the viva voce examination. But suspicion cannot take the place of proof and we cannot strike down the selections made on the ground that the evaluation of the merits of the candidates in the viva voce examination might be arbitrary. It is necessary to point out that the court cannot sit in judgment over the marks awarded by interviewing bodies unless it is proved or obvious that the marking is plainly and undoubtedly arbitrary or affected by oblique motives. It is only if the assessment is patently arbitrary or the risk of arbitrariness is so high that a reasonable person would regard arbitrariness as inevitable that the assessment of marks at the viva voce test may be regarded as suffering from the vice of arbitrariness. Moreover, apart from only three candidates, namely Trilok Nath Sharma, Shakuntala Rani and Balbir Singh one of whom belonged to the general category and was related to Shri Raghubar Dayal Gaur and the other two were candidates for the seats reserved for scheduled castes and were related to Shri R.C. Marya, there was no other candidate in whom the chairman or any members of the Haryana Public Service Commission was interested, so that there could be any motive for manipulation of the marks at the viva voce examination. There were of course general allegations of casteism made against the chairman and the members of the Haryana Public Service Commission, but these allegations were not substantiated by producing any reliable material before the Court. The chairman and member of the Haryana Public Service Commission in fact belonged to different castes and it was not as if any particular caste was predominant amongst the chairman and members of the Haryana Public Service Commission so as even to remotely justify an inference that the marks might have been manipulated to favour the candidates of that caste. We do not think that the Division Bench was right in striking down the selections made by the Haryana Public Service Commission on the ground that they were vitiated by arbitrariness or by reasonable likelihood of bias.”
14. In that case the marks allocated for viva voce test came to 22.2 % of the total
number of marks kept for the competitive examination. This percentage of 33.3 %
was in the case of ex-service officers and 22.2 % was in the case of other candidates.
15. As regards the allocation of marks for interview, in paras 23 and 24 of the
same judgment it is stated thus:-
“ 23. This Court speaking through Chinnappa Reddy, J. pointed in Lila Dhar v. State of Rajasthan [1982 (1) SCR 320] that the object of any process of selection for entry into public service is to secure the best and the most suitable person for the job, avoiding patronage and favoritism. Selection based on merit tested impartially and objectively, is the essential foundation of any useful and efficient public service. So open competitive examination has come to be accepted almost universally as the gateway to public services. But the question is how should the competitive examination be devised?
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The competitive examination or it may be based exclusively on oral interview or it may be a mixture of both. It is entirely for the government to decide what of competitive examination would be appropriate in a given case. To quote the words of Chinnappa Reddy. J. In the very nature of things it would not be within the province or even the competence of the court and the court would not venture into such exclusive thickets to discover ways out, when the matters are more appropriately left” to the wisdom of the experts. It is not for the court to lay down whether interview test should be held at all or how many marks should be allowed for the interview test. Of course the marks must be minimal so as to avoid charges of arbitrariness, but not necessarily always. There may be posts and appointments. Where the only proper method of selection may be by a viva voce test. Even in the case of admission to higher degree courses, it may sometimes be necessary to allow a fairly high percentage of marks for the viva voce test. That is why rigid rules cannot be laid down in these matters by courts. The expert bodies are generally the best judges. The government aided by experts in the field may appropriately decide to have a written examination followed by a viva voce test.
24. It is now admitted on all hands that while a written examination assesses the candidate’s knowledge and intellectual ability, a viva voce test seeks to assess a candidate’s overall intellectual and personal qualities. While a written examination has certain distinct advantages over the viva voce test, there are yet no written tests which can evaluate a candidate’s initiative, alertness, resourcefulness, dependableness, cooperativeness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others adaptability, judgment, ability to make decision, ability to lead, intellectual and moral integrity. Some of these qualities can be evaluated, perhaps with some degree of error by viva voce test, much depending on the constitution of the interview board.”
16. Even having found allocation of 22.2 % marks for viva voce test were
unreasonable and excessive, selection was not upset as stated hereunder:-
“ 28. But the question which then arises for consideration is as to what is the effect of allocation of such a high percentage of marks for the viva voce test, both in case of ex-service officers and in case of other candidates, on the selections made by the Haryana Public Service Commission. Though we have taken the view that the percentage of marks allocated for the viva voce test in both these cases in excessive. We do not think we would be justified in the exercise of our discretion in setting aside the selections made by the Haryana Public Service Commission after the lapse of almost two years. The candidates selected by the Haryana Public Service Commission have already been appointed to various posts and have been working on these posts since the last about two years. Moreover the Punjab Civil Service (Executive Branch) Rules, 1930 under which 33.3 % marks in case of ex-service officers and 22.2 % marks in case of other candidates have been allocated for the viva voce test have been in force for almost 50 years and everyone has acted on the basis of these rules. If selection made in accordance with the prescription contained in these rules are now to be set aside, it will upset a large number of appointments already made on the basis of such selections and the
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integrity and efficiency of the entire administrative machinery would be seriously jeopardized. We do not therefore propose to set aside the selections made by the Haryana Public Service Commission though they have been made on the basis of an unduly high percentage of marks allocated for the viva voce test.”
17. This Court is Ashok Kumar Yadav’s case, aforementioned, found allocation
of 12.2 % marks for viva voce test was fair and just and in that view directed that
marks allocated for the viva voce test shall not exceed 12.2 % of the total marks taken
into account for the purpose of selection. Even judged by this standard in the present
appeals, the marks allocated for viva voce test being 25 as against total marks of 240
are less than 12.2 % i.e., well within the ambit of direction given. In that case, this
Court declined to exercise discretion to set aside the selection made by the HPSC after
the lapse of 2 years taking note that the selected candidates had already been
appointed to various posts.
18. In All India State Bank Officers Federation and Others v. Union of India
and Others, this Court observed, “ there can be no rigid or hard and fast rule that the
interview marks can only be 15 per cent and no more. The percentage of marks for
viva voce or interview which can be regarded as unreasonable will depend on the facts
of each case. Decisions of this Court show that no rigid rule, relating to percentage of
marks for interview of general universal application can or has been laid down. What
the interview or viva voce marks should be may vary from service to service and the
office or position or the purpose for which the interview is to be held. But the
interview marks should not be so high as to give an authority unchecked scope to
manipulate or act in an arbitrary manner while making selection.”
19. This Court in a recent decision in Jasvinder Singh & Ors. V. State of J & K
& Ors. after referring to earlier decisions, pointed out that the very observations made
in Ashok Kumar Yadav’s case show that there cannot be any hard and fast rule of
universal applications for allocating the marks for viva voce vis-à-vis the marks for
written examination and consequently the percentage indicated therein alone cannot be
the touchstone in all cases; what ultimately is required to be ensured is as to whether
the allocation as such is with an oblique intention and whether it is so arbitrary as
capable of being abused and misused in its exercise. Para 7 of the said judgment
reads:-
“ 7. In Mehmood Alam Tariq V. State of Rajasthan {JT 1988 (2) SC 417}, prescription of 33 % as minimum qualifying marks of 60 out of total 180 marks set apart for viva voce examination does not by itself incur any constitutional infirmity. In Manjeet Singh v. ESI Corpn. {JT 1990 (2) SC 180} this Court held that in the absence of
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any prescription of qualifying marks for the interview test the same 40 % as applicable for written examination was reasonable. In Anzar Ahmad v. State of Bihar {JT 1993 (6) SC 168} this Court exhaustively reviewed the entire case law on the subject including the one in Ashok Kumar Yadav’s case and upheld a selection method which involved allocation of 50 % marks for academic performance and 50 marks for the interview. The very observations in Ashok Kumar Yadav’s case would go to show that there cannot be any hard-and-fast rule of universal application for allocating the marks for viva voce vis-à-vis the marks for written examination and consequently the percentage indicated therein alone cannot be the touchstone in all cases. What ultimately required to be ensured is as to whether the allocation as such is with an oblique intention and whether it is so arbitrary as capable of being abused and misused in its exercise. Judged from the above the Division Bench could not be held to have committed any error in sustaining the allocation of 25 marks (20%) for viva voce as against 100 marks for written examination for selection of candidates in the present case. The learned single Judge, in our view, has adopted a superficial exercise and proceeded on a misunderstanding of the real ratio of the decision in Ashok Kumar Yadav’s case. Further, the learned single judge appears to have applied the ultimate decision in the said case to the case on hand drawing certain inferences on mere assumptions and surmises or some remote possibilities, without any proper or actual foundation or basis, therefore.”
20. The observations made in para 8 of the same judgment in somewhat similar
circumstances which have negative impact on the contentions urged on behalf of the
appellants are:-
“ 8. The learned single judge also seems to have been very much carried away by few instances noticed by him as to the award of higher percentage of marks in viva voce to those who got lower marks in the written test as compared to some who scored higher marks in the written examination but could not get as much higher marks in viva voce. Picking up a negligible few instances cannot provide the basis for either striking down the method of selection or the selections ultimately made. There is no guarantee that a person who fared well in the written test will or should be presumed to have fared well in the viva voce test and also and the expert opinion about as well as experience in viva voce does not lend credence to any such general assumptions, in all circumstances and for all eventualities. That apart, the variation of written test marks of those who were found to have been awarded higher marks in viva voce vis-à-vis those who secured higher marks in the written test but not so in the viva voce cannot be said to be so much (varying from five marks and at any rate below even 10) as to warrant any proof of inherent vice in the very system of selection or the actual selection in the case. There was no specific allegation of any mala fides or bias against the Board constituted for selection or anyone in the Board nor any such plea could be said to have been substantiated in this case. The observation by the learned single judge that there was a conscious effort made for bringing some candidates within the selection Zone cannot be said to be justified from the mere fact of certain instances noticed by him on any general principle or even on the merits of those factual instances alone. Further, the course adopted by the learned single judge in directing
662
selection from general candidates of all those who have obtained 56 marks in the written examination cannot be justified at all and it is not given to the Court to alter the very method of selection and totally dispense with viva voce in respect of a section alone of the candidates, for purposes of selection. On a careful and overall consideration of the judgments of the learned single judge and that of the Division Bench, we are of the view that the decision of the learned single judge cannot be sustained for the reasons assigned by him and the decision of the Division Bench cannot be considered to suffer any such serious infirmity in law to call for our interference.
21. In civil appeal no. 937 of 2002 the learned counsel for the appellant urged an
additional ground that 5 marks fixed for higher educational qualifications were not
given to the appellant. According to him the appellant had additional qualifications of
M.A. and LL.B; he ought to have been given additional marks for M.A as well as
LL.B., but only 2 marks were given for both the qualifications together, which
affected his chance of selection. It appears that this point was not urged before the
High Court and no opportunity was available to the respondents to meet this point.
However, during the course of hearing, based on the criteria fixed for selection, it was
explained to us by the learned counsel for the respondents that for additional
educational qualifications 5 marks were set apart. Out of them maximum marks
available to the highest educational qualification of a candidate were to be given and
not that marks were to be given to every additional educational qualification. It is
better to look at the criteria, which was filed as annexure R- 1 in the writ petition,
which is reproduced hereunder:-
“ ANNEXURE R – 1”
CRITERIA/ FORMULA ADOPTED FOR SELECTION OF CANDIDATES
FOR THE POST OF NAIB TEHSILDAR BY THE SUBORDINATE SERVICES SELECTION BOARD, PUNJAB
Total marks for selection 240
i) marks allotted for competitive test 200
ii) Marks allotted for Additional Educational, sports and other Qualifications 15 iii)Marks allotted for interview/ (VIVA-VOCE) 25
I) A. Marks allotted for Educational Qualification (for additional Qualification) 5
i) Ph.D 5
ii) M.A/M.Sc/ M.Tech and other post
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graduate degree
1st Division 3
2nd Division and
3rd Division 2
iii) LL.B 2
iv) Any other qualification 1
Note: The candidate will be given the marks on the basis of his/her highest qualification and not on the basis of his/her each qualification lower than this.
II. B. SPORTS/EXTRA CURRICULAR 5
ACTIVITIES.
I) Sports
International winner 5
National winner 3
State winner 2
ii) N.C.C 3
C Certificate 3
B Certificate 2
A Certificate 1
iii) N.S.S 2
One camp 1
Two or more camp 2
III INTERVIEW
Interview marks of the board will be 25 and the system for awarding the marks
would be same as approved separately for all categories
Sd/- (Jasdev Singh Sandhu) Chairman 19.1.1999 sd/- sd/- ( Kulbir Singh Randhawa) (Ashok Loomba) Member Member Sd/- sd/- ( Prakash Singh Gardhiwal) (Virsa Singh Valtoha) Member Member Sd/- (Jarnail Singh Wahid) Member
664
From Annexure R- 1 it is clear that total marks for selection were 240. Marks
allocated for competitive test were 200 marks allocated for additional educational,
sports and other qualifications were 15 and marks allocated for interview (viva voce)
are 25. Marks allocated for educational qualifications are 5 and maximum marks are 5
for Ph.D., for post graduation in first division 3 marks, for second and third divisions 2
marks, for LL.B 1 mark. If the argument of the learned counsel for the appellant is to
be accepted, it may result in anomalous situation. Suppose, a candidate, who
possesses three additional qualifications including Ph.D., in that event he would be
entitled 5 marks for Ph.D and additional marks for every additional educational
qualifications. Then the total marks to be assigned to a candidate for the educational
qualifications. Then the total marks to be assigned to a candidate for the educational
qualifications shall be more than 5 marks. In the case of the appellant, although he
had two additional educational qualifications, the maximum marks to which he was
entitled for highest qualification were given. Hence he cannot make any grievance.
This being the position, we do not find any merit in the contention. Hence it is
rejected.
22. In civil appeal no. 5985 of 2002 it was urged that no marks were given to the
appellant for additional educational qualifications. It appears that this point also was
not raised before the High Court and similarly no opportunity was available to the
respondents to meet the point. The learned counsel for the appellant contended that
the appellant had additional post graduation qualification and no marks were given to
him. It was brought to out notice by showing the original record that in the application
form no mention was made about additional post graduation qualification acquired by
the appellant and no record or certificate was placed before the authorities at
appropriate time to show that the appellant had acquired additional qualifications.
Hence the contention has no merit and consequently it is rejected.
23. In these appeals, the non-official respondents having been appointed in May,
1998, are continuing in service almost for a period of five years. On this ground as
well as looking to the conduct of the appellants in making misrepresentation to this
Court and finding no merit in these appeals, we should decline to interfere with the
impugned judgment and order. It may be noted that even in the Ashok Kumar
Yadav’s case (supra) this Court set aside the judgment of the Division Bench of the
High Court by rejecting the challenge to the validity of the selection made by the
HPSC.
665
24. In order to sustain and maintain sincerity and solemnity of the proceedings in
law courts it is necessary that parties should not make false or knowingly, in accurate
statements or misrepresentation and/ or should not conceal material facts with a design
to gain some advantage or benefit at the hands of the court, when a court is considered
as a place where truth and justice are the solemn pursuits. If any party attempts to
pollute such a place by adopting recourse to make misrepresentation and is concealing
material facts it does so at its risk and cost. Such party must be ready to take
consequences that follow on account of its own making. At times lenient or liberal
or generous treatment by courts in dealing with such matters are either mistaken or
lightly taken instead of learning proper lesson. Hence there is a compelling need to
take serious view in such matters to ensure expected purity and grace in the
administration of justice.
25. Before we part with these cases, we must observe that the misrepresentation
made by the appellants in the SLPs supported by an affidavit require serious action but
we refrain from taking any further action in view of the apology and regret expressed
by the appellants during the hearing. But, we administer a warning to them to be
careful in future and not to make any misrepresentation or false statement before any
court and impose cost also.
26. For the reasons stated and discussion made above, these appeals are dismissed
but with cost of Rs.10,000/- (Rs.5,000/- to be paid by each of the appellants) in civil
appeal no. 812 of 2002 and Rs.5,000/- in each one of the remaining appeals to be paid
by the appellants which amount shall be deposited with the Legal Aid Committee of
the Supreme Court.
***
666
RAJASTHAN PUBLIC SERVICE COMMISSION `
667
AIR 1981 SUPREME COURT 1777
Lila Dhar v. State of Rajasthan
Constitution of India, Arts. 14, 16, 309, Proviso – Rajasthan Judicial Service Rules,
Pre and Sch. 3 – Selection for posts of Munsifs – 25 % of marks allotted to viva voce
under the rules- Does not render selection arbitrary and violative of Arts. 14 and 16.
Observation in AIR 1981 SC 487 relating to public employment held per incuriam.
(Civil) Service – Recruitment – Viva Voce).
The selection for the posts of Munsifs cannot be struck down on the ground
that more than due weightage was given to the interview test in that 25 % marks are
allotted to viva voce under the rules and thus the selection was arbitrary and violative
of Arts. 14 and 16, AIR 1981 SC 487 and AIR 1971 SC 2303, Disting. (Para 7)
If the Governor in consultation with the High Court and the Public Service
Commission of the State makes rules stipulating seventy-five per cent of the marks for
the written examination and twenty-five per cent for the interview test, it cannot be
said that twenty-five percent for the interview test is on the high side especially when
the interview test was conducted by a body consisting of a Judge of the High Court.
The Chairman and a member of the Public Service Commission and a special invitee
expert. There can surely be no legitimate grievance or hint of arbitrariness against
such body. Yet another factor worthy of consideration is that the candidates expected
to offer themselves for selection are not raw graduates freshly out of college but are
persons who have already received a certain amount of professional training. The
source material is such that some weightage must be given to the interview test and it
cannot possibly be said that twenty five per cent of the total marks is an exaggerated
weightage. Observation in AIR 1981 SC 487 relating to public employment held
given per incuriam. (para 7)
In the aforesaid view the selection was also not open to challenge on the
ground that marks were awarded in the interview-test in a single lot instead of sub-
dividing and awarding them separately under various heads for the various matters
tested in the interview. The rules themselves do not provide for the allocation of
marks under different heads at the interview test. The criteria for the interview test
have been laid down by the rules. It is for the interviewing body to take a general
decision whether to allocate marks under different heads or to award marks in a single
lot. The award of marks under different heads may lead to a distorted picture of the
candidate on occasions. On the other hand the totality of the impression created by the
668
candidate on the interviewing body may give a more accurate picture of the
candidate’s personality. It is for the interviewing body to chose the appropriate
method of marking at the selection to each service. There cannot be any magic
formulae in these matters and courts cannot sit in judgment over the methods of
marking employed by interviewing bodies unless it is proven or obvious that the
method of marking was chosen with oblique motive.
***
669
AIR 1998 SUPREME COURT 2251
Rajasthan Public Service Commission v. Chanan Ram
Constitution of India, Art. 309 – Rajasthan State Agricultural Marketing Service Rules
(1986) (as amended in 1995), R.6 – Recruitment – Advertisement for posts of
Assistant Director (Junior) – Amendment of Rules in the meantime abolishing said
posts and creating new posts of Marketing Officers – Fresh advertisement issued for
filling up vacancy in new posts - Thus earlier advertisement became infructuous and
otios – Candidate making application under earlier advertisement, in circumstances,
cannot insist that recruitment process pursuant to said advertisement must be
continued and must be brought to its logical end – Fact that old vacancies were carried
forward and got merged along with three more vacancies for the newly created posts
of Marketing Officers, would not mean that still earlier vacancies remained existing
under Rules for appointing eligible persons to erstwhile vacant posts of Assistant
directors ( Junior ).
1997 Lab IC 2217 (Raj), Reversed.
AIR 1983 SC 852, Disting.
***
670
AIR 1998 SUPREME COURT 2367
Babulal Yadav v. High Court of Rajasthan
Constitution of India, Arts. 16, 309 – Rajasthan Subordinate Civil Courts Ministerial
Establishment Rules (1986), Rr. 10, 28 – Rajasthan Subordinate Offices Ministerial
Staff Rules, (1957, R. 4 (h) - Appointment – Confirmation – Stenographer in sub-
ordinate Civil Courts placed on probation – Required by 1986 Rules to pass qualifying
test held by service commission for confirmation – Stenographer passing examination
for recruitment to cadre of stenographers in subordinate offices of State Govt. held
under 1957 Rules – Would not earn him confirmation even if criteria applied in both
tests was same earn him confirmation.
A stenographer appointed in Subordinate Civil Court and placed on probation
does not become entitled to confirmation on his passing the qualifying test conducted
by the Service Commission for recruitment to the cadre of Stenographer in the
Subordinate Offices of the State Govt. under 1957 Rules. The Rajasthan Subordinate
Offices Ministerial Staff Rules, 1957 are meant for recruitment to the cadre of
Stenographers in the Subordinate Offices of the State Government and are
inapplicable to the service of Stenographers in shorthand and typewriting in both the
tests is the same but the two Rules relate to different sets of services- one for
Subordinate Civil Courts and other for Subordinate Offices of the State Govt. The
stenographers of subordinate offices of the State Govt. belong to different class,
different service and appointed under the different set of Rules and mere passing by a
stenographer working in subordinate Civil Court of the qualifying test for recruitment
to the cadre of stenographer to the Subordinate offices of the State Govt. is of no
consequence of his confirmation under the 1986 Rules. Unless the appellant passes
the qualifying test to be held by the Commission under the 1986 Rules, he has to be
treated as working on extended probationary period. (para 2, 8)
As qualifying test for confirmation of stenographers in subordinate Courts has
not been held for about 17 years, Supreme Court directed the High Court to request
the Rajasthan Public Service Commission to hold the qualifying test under the 1986
Rules without any delay. (para 9)
Pallav Shishodia and A.P. Medh Advocates, for Appellant; B.D. Sharma and
S.K. Jain, Advocates, for Respondents.
***
671
AIR 1988 SUPREME COURT 1451
Mehmood Alam Tariq v.State of Rajasthan
Constitution of India, Arts.14, 16, 309 – Civil Services- Direct recruitment - Viva
Voce - Prescribing 33% as minimum qualifying marks – Not arbitrary. Decision of
Rajasthan High Court D/- 6-2-1987 Reversed.
The Rajasthan State and Subordinate Service (Direct Recruitment by
Combined Competitive Examinations) Rules 1962; the Rajasthan Administrative
Service Rules 1954, and the Rajasthan Police Service Rules 1954, and the Rajasthan
Forest Service Rules 1962 contain a provision, special to the said three services, and
not applicable to other services, that candidates, other than those belonging to
Scheduled Castes and Scheduled Tribes, should secure a minimum of 33% of marks in
the viva voce test. This prescription of minimum qualifying marks of 33% out of the
maximum marks set apart for the viva voce examination does not, by itself, incur any
constitutional infirmity. Academic excellence is one thing. Ability to deal with the
public with fact and imagination is another. Both are necessary for an officer.
Administrative and Police Service constitute the cutting edge of the administrative
machinery and the requirement of higher traits of personality is not an unreasonable
expectation. Thus, it could not be said that a minimum of 33 % in viva voce was a
determining factor in Selection Process. Decision of Rajasthan High Court D/-6-2-
1987 Reversed. AIR 1987 SC 454 Disting.
***
672
RAJASTHAN HIGH COURT JODHPUR BENCH
S.B.Civil W.P.No.2740/1998 D.D. 9.11.2002
Hon'ble Dr.Justice B.S.Chauhan
Hari Singh – Petitioner Vs. Rajasthan P.S.C. – Respondent
The question here is whether the Degree of Acharya is equivalent to Degree of Master of Arts prescribed for the post of lecturer in the department of Collegiate Education. The petitioner who possesses Acharya Degree is held to be ineligible for the post. The High Court in view of the decision of the Supreme Court has held that Acharya Degree is equivalent to M.A. Degree and accordingly, allowed the writ petition and directed the Public Service Commission to consider the candidature of the petitioner for the post. Case referred: 1976 (3) SCC 282 Rampalit, Vyakaran Acharya Vs. Punjab University
ORDER The instant writ petition has been filed for quashing the order dated 17.7.98
(Annexure 4), by which the respondent – Commission has found the petitioner
ineligible for the post of Lecturer in the Department of Collegiate Education as per the
advertisement No.5/1997-98 (Annexure 3).
The facts and circumstances giving rise to this case are that the petitioner
possesses the qualification of Master of Arts/Acharya (Sahitiya) as he passed the said
course in 1997 from Jai Narain Vyas University, Jodhpur in First Division. But he has
been found ineligible by the respondent – Commission for the reason that it was not a
Master's Degree. Being aggrieved, the petitioner has filed the instant writ petition.
Heard Mr. Manoj Bhandari, learned counsel for the petitioner and Mr.
J.P.Joshi, learned counsel for the respondent – Commission.
Mr. Bhandari has pointed out that the petitioner possesses the requisite
qualification and it is evident from the Degree awarded by Jai Narain Vyas University,
Jodhpur, that the Degree of Achary is a Degree of Master of Arts. Thus, it cannot be
said by the respondent – Commission that the petitioner does not possess the requisite
qualification of Post Graduation. Mr. J.P.Joshi, learned counsel for the respondent –
Commission has submitted that the submissions made on behalf of the petitioner are
untenable and unsustainable for the reason that he has not adduced any document
673
showing that the Degree of Acharya (Sahitya) possessed by him was equivalent to the
Degree of Post Graduation and, therefore, the petition is liable to be rejected only on
the ground of non-eligibility of the petitioner.
I have considered the rival submissions made by the learned counsel for the
parties and perused the record.
The submission made by the respondent – Commission is pre-posterous only
for the reason that the Degree of Acharya possessed by the petitioner itself shows that
he possesses the Degree of Post Graduation as the Degree provides that the petitioner
is awarded the Degree of Acharya (Master of Arts) in First Division and he secured
69.77% marks in the examination held in 1997. This view is further fortified by the
judgment of the Hon'ble Supreme Court in Rampalit, Vyakaran Acharya Verus Punjab
University, Chandigarh and others, 1976 (3) SCC 282, wherein the Apex Court has
categorically held that "Acharya Degree is equivalent to Master of Arts as was evident
from the letter dated 23.1.1964 from the Government of India, Ministry of Education
to the Education Secretaries of All the State Governments/Union Territories,
Government/ Administration and Registrars of all the Universities on the subject of
Equivalence of Sanskrit Examination." The Hon'ble Apex Court has further observed
that "the aforesaid letter was passed as the Government was very much keen regarding
development of Sanskrit in the country and it has impressed upon all the Universities
that they should employ atleast one Traditional Sanskit Scholar.
Thus, in view of the above, the petition succeeds and is allowed. The
impugned order dated 17.7.98 (Annexure 4) is hereby quashed. Petitioner's
candidature has been considered by the respondent – Commission in view of the
interim order of this Court and one post has been kept vacant. The respondent –
Commission is directed to declare the result of the petitioner and consider his
candidature strictly in accordance with law.
***
674
S.B. CIVIL W.P.NO.2052/1998 D.D. 20.2.2002
Hon'ble Justice Dr. B.S.Chauhan Dr.Anjali Gupta – Petitioner Vs. State of Rajasthan & Others – Respondents The applicant who was an unsuccessful candidate challenged the selection on the ground that the Expert in the interview Committee was from Pathology Department and not from Micro Biology Department. Held – Micro Biology has been a part of Pathology Department earlier. Therefore, it cannot be said that the Expert from Pathology Department was not competent as Expert.
ORDER
The instant writ petition has been filed for quashing the selection of the
respondents Nos.4 and 5 on the post of Senior Demonstrator (Micro Biology) in S.N.
Medical College, Jodhpur.
The facts and circumstances giving rise to this case are that petitioner passed
her M.B.B.S. Examination and took her M.D. (Micro Biology) and applied for the
post of Senior Demonstrator (Micro Biology) and was appointed on the said post on
ad hoc basis. The R.P.S.C., respondent No.2 advertised three vacancies for the post of
Senior Demonstrator (Micro Biology) wherein two posts were for general category.
The interview for the said post was held on 3.6.1998. In the Expert Committee, one
Member was not from Micro Biology but was of Pathology. As it came to the notice
of the petitioner at a subsequent stage, she could not protest at the time of interview
and in the result, the respondents Nos.4 and 5 have been selected. Hence, this petition
on the ground that one of the Expert was from Pathology and not from Micro Biology
and the respondents who have been selected had been the student of other expert,
therefore, he might have favoured them.
In the instant case as the expert has not been made party by name, the
allegations that the selected candidate, that happens to be the students of the expert
members could have favoured them, cannot be entertained nor there can be any
presumption in law of such a favouritism. Therefore, this issue is not worth
examination. (vide J.M. Banawalikar Vs. Municipal Corporation, Delhi & Ors., AIR
1996 SC 326; State of Bihar & Ors. Vs. P.P.Sharma, 1992 (Suppl) 1 SCC 222;
I.K.Mishra Vs. Union of India & ors., (1997) 6 SC 228 and All India State Bank
Officers Federation & ors. Vs. Union of India & ors., JT 1996 (8) SC 550).
675
The next issue raised by Shri Trivedi is that the expert called for the interview
by the Commission should have been from outside the State of Rajasthan.
As there is no such requirement under the Rules or any Statutory Provision for
calling the experts from outside nor there can be a general presumption that the expert
within the State would not fairly held the selection, such a submission cannot be
accepted.
It has further been contended that one of the expert i.e. Shri V.V.Kalra called
for the interview was not the experts of Micro Biology but was the Professor of
Pathology. Therefore, the selection has been held at the mercy of a person not
knowing the subject and, therefore, the selection stands vitiated.
Learned Counsel appearing for the respondents have made the submissions
that Micro Biology had been bifurcated from the Department of Pathology and at the
time of bifurcation, the teaching and non-teaching staff of the said department was
given an option either to join the Micro Biology Department or to continue in
Pathology Department. Therefore, according to them, as Micro Biology was part of
the Pathology, such a contention is not worth acceptance. More so, after bifurcation,
the persons who have got specialization in Micro Biology have not yet attained the
status or seniority that they may be called by Commission for such an expert job.
Though Professor Kalra continued in Pathology Department, as Micro Biology has
been a part of the Pathology earlier, it cannot be held that Professor Kalra was not
competent as expert.
Shri Trivedi has placed reliance upon the judgment of the Hon'ble Supreme
Court in Dr.Trilok Nath Singh Vs. Dr. Bhagwan Din Misra and others, AIR 1990 SC
2063 facts of which are distinguishable as in that case it has been held by the Apex
Court that as the expert of Hindi were not available, the other persons who held the
interview could not be said to be the expert.
In the instant case as the Micro Biology was the part and parcel of the
Pathology Department prior to bifurcation, the above judgment and order is quite
distinguishable.
No other point has been raised. The petition is, therefore, devoid of merit and
the same is hereby dismissed.
***
676
Civil Writ Petition No.2922 of 1991 D.D. 20.2.2002
Hon'ble Mr. Justice Dr. B.S.Chauhan Dr. Rohitashwa – Petitioner Vs. The State of Rajasthan & Ors. – Respondents Recruitment to fill up the vacancies in Radiology Department Persons working in the parent Department of Radio Therapy and Radio Diagnosis were called as Experts. As the Radiology Department was a part of Radio Therapy and Radio Diagnosis Department before its bifurcation the Experts were held to be competent.
ORDER The grievance in this petition had been that the expert came to hold the
interview were working in the Radio Therapy and Radio Diagnosis Department,
though the vacancies was in Radiology Department. As up to 1985, the Radiology
was a part of Radio Therapy and Radio Diagnosis Department, the combine
department was performing the functions of both specialities before bifurcation, it
cannot be held that persons working in that parent department of Radio Therapy and
Radio Diagnosis could not be called to hold interview for filling up the vacancies in
Radiology.
Thus, in view of the judgment and order passed by this Court in S.B. Civil
Writ Petition No.2052/1998, Dr. Anjali Gupta Vs. State and others, decided on
20.2.2002, there is no force in the petition and the same is hereby dismissed.
***
677
S.B. Civil Writ Petition No. 279 of 1995 D.D. 22.7.2002
Hon'ble Mr Justice Shiv Kumar Sharma
Sudhir Sharma – Petitioner Versus State of Rajasthan & Ors.
Recruitment for the State and Allied Services like RAS., RPS., Commercial Service etc. The petitioner had indicated his preference for RAS, RPS and Commercial Service in that order. The petitioner was selected as Commercial Tax Officer. Respondent No.4 Sri. Gyan Prakash Gupta who was selected and appointed for RPS resigned after joining service. According to the petitioner he was entitled to be selected in the RPS against the non-joined non-filled vacancy of Respondent No.4 as he had indicated it as a second preference. Held – If a candidate does not join the post, the vacancy so created shall be treated as fresh vacancy. Therefore, the petitioner was not entitled to be appointed to RPS against the vacancy created by Respondent No.4 as it was a fresh vacancy.
Cases referred:
1. AIR 1990 SC 405 P.Mahendran & Ors. Vs. State of Karnataka & Ors. 2. (1995) 2 SCC 630 Rajagopal Reddy & Ors. Vs. Padmini Chandrasekharan 3. 2002 (2) SLR 410 Thrissur District Co-operative Bank Limited Vs. Delson Davis P. & Ors.
ORDER
The petitioner in the instant writ petition sought the following relief:
i) quashing of the impugned order dated March 3, 1994 (Annexure-I) wrongly allocating/appointing the petitioner to the Rajasthan Commercial Taxation Services;
ii) declaring the appointment of Shri G.P. Gupta (respondent No.4) in the RPS at S.No. 6 of order dated 26.2.1994 (Annexure-I) as cancelled and inoperative due to his non-joining until 07.03.1994;
iii) declaring the said non-joined post in the RPS of said Shri. G.P. Gupta as a vacancy from 26.02.1994/ 07.03.1994, under existing Rule 18(2) of Rules, 1962 and allotting the same for appointment of the petitioner in the RPS as per his 2nd preference and being next in merit as per provisions of Rule 18(1) of Rules, 1962 and Rule 25 and 26 of RPS Rules, 1954 w.e.f. 07.03.1994 from which date petitioner has been appointed in Commercial Taxes Service (Annexure-2);
iv) ordering/directing the respondents No.1 and 2 issue orders appointing the petitioner in Rajasthan Police Service w.e.f. 26.02.1994/07.03.1994 against the said vacancy of Shri G.P. Gupta (S.No. 3 Annexure-1) and deeming petitioners seniority confirmation
678
etc., and pay/increments in the RPS w.e.f said date 26.02.1994/ 07.03.1994 by deeming his appointment in RPS below S. No. 14 i.e Shri. Manish Agarwal and above Shri. Dusht Daman Singh S. No. 15 in said orders dated 26.02.1994 (Annexure-I) and allowing the aforesaid benefits to the petitioner vis-a-vis officers appointed in RPS per Annexure-I.
2. Facts in brief are that the petitioner appeared at the combined Competitive
Examination 1991 for the State and Allied Services, results of which were announced
on August 7, 1993. In accordance with Rules of Competitive Examination 1962, the
petitioner gave preference for appointment as under:
1. Ist Preference RAS 2. IInd Preference RPS 3. IIIrd Preference Commercial Service
3. The petitioner was selected for all the said three services but since his position
in regard to RAS was little lower he was not selected/appointed for RAS. But in so far
as 2nd preference is concerned the petitioner's merit position being at No.35 and 2
persons above him were Sarava Shri. Raghuvar Dayal Merit No. 6 and Ram Niwas
Sharma merit No. 29, having got less than 60 marks in interview, the petitioner's merit
position became at No.33 which entitled him to be selected appointed in the RPS
against the non-joined non-filled vacancy/of Shri Gyan Prakash Gupta who was
appointed at S.No.3 by the order dated February 26, 1994.
4. As per Rule 10(4) and Rule 18 of the Rules 1962 the selections and
appointments are required to be made strictly in order of merit and as per preferences
given by the candidate. The petitioner had not changed his option/preference at any
time and as such his second preference for RPS remain valid ad operative and he was
entitled to be appointed to the RPS against the said vacancy caused by Shri.G.P. Gupta
respondent No.4. The respondents 1 and 2 on the basis of the recommendations of
Rajasthan Public Service Commission about the selectees in said services made
appointments to concerned services and the respondents necessarily and mandatorily
adhere to the merit and order of preference. The respondents issued appointment
orders in all the three services within a span of 7 days i.e. RAS orders were issued on
February 24, 1994, RPS orders were issued on February 26, 1994 ad commercial
services orders were issued on March 3, 1994. The petitioner averred that the orders
were issued simultaneously and the respondents did not and could not have reckoned
or offered opportunity to the selected candidates for exercise of their rights of
preference. On account of issuance of simultaneous orders in all the three services,
the candidates were asked to join by 07.03.1994 at the HCM institute, there was no
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occasion left nor opportunity provided to the selectees, including the petitioner to
obtain a chance for being selected/appointed to the higher preference. The petitioner
averred that for being appointed to RPS which was his 2nd preference, no opportunity
was given to him. The resultant position was that even though the petitioner had given
2nd preference for RPS, but was shunted to 3rd preference of Commercial Services and
appointed vide order dated March 3, 1994 and since March 7, 1994 was given as the
final date for joining at HCM institute failing which the appointment order to this
service of 3rd preference was ordered to lapse. The petitioner was in fact given no
chance at all. The petitioner averred that thus it is clear that he was denied his rights
of 2nd preference for RPS in respect of vacancy that could possibly occur due to non-
joining of any one of the persons so appointed to RPS as per order dated February 26,
1994. The 2nd preference given by the petitioner for the post of RPS in this manner
stood wholly negative and denied, which is contrary to said Rules 10(4) and 18 of the
Rules of 1962 as also Rules 25 and 26 of the RPS Rules 1954. Shri. G.P. Gupta did
not join upto March 7, 1994, at the HCM Institute thus due to his non-joining a clear
vacancy occurred on March 7, 1994 and as such the petitioner being at 35 (32 as
shown) and his preference being 2nd for this Service, should have been appointed on
March 7, 1994 in RPS and his appointment order in Commercial Service issued on
March 3, 1964 should have been amended and he was to be given appointment in
place of Shri. G.P. Gupta in RPS and given position in RPSC in that order dated
February 26, 1994 below Manish Agrawal and above Dusthdaman Singh (S. No. 15)
and merit No. 43 NGE quota) as per Rules 10(4) and Rule 18 of the Rules of 1962.
The petitioner averred that in not doing so his rights against the said vacancy in RPS
stood denied and need rectification.
5. The further case of the petitioner is that the respondent No.4 Shri G.P. Gupta
has not even joined in RPS at the time of filing of the writ petition and the vacancy in
the RPS continues to date. The respondent No.4 was working in RJS cadre and no
rule permit any candidate to hang on far so long and at his will and keep the post
reserved for him till he joins. Last date of joining as stated was March 7, 1994 and
thereafter due to his non-joining his appointment automatically lapses and vacancy
becomes available to the petitioner for being next in merit and due to 2nd preference.
The foundation course at HCM institute completed and Institutional course at RPS
commenced but the respondent No.4 has not joined and thus his vacancy is clear and
he has a right to be given appointment.
6. The petitioner further averred that pushing him to 3rd preference of
Commercial Services and not allowing him the right to be appointed to RPS against
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said vacancy is not only unjust but contrary to said rules relating to merit and
preferences. The petitioner joined the 3rd preference i.e. Commercial Taxes Services
on March 11, 1994.
7. The further case of the petitioner is that in Government of India, in respect of
selections/appointments based on UPSC Exam, there is a clear procedure of first
giving an offer of a certain service to the selected candidates and he is told in writing
that his position is likely to be improved and he is likely to be considered for higher
preference in case of non-joining of a candidate in the higher service. Any procedure
contrary to this as followed by the respondents is violative of Rules and a complete
denial of right of preferences. In fact otherwise, the preferences would become
meaning less. This position has not been seen by the Government and deserves to be
reconsidered.
8. The petitioner further averred that the vacancy caused due to non-joining of
respondent No.4 G.P. Gupta cannot be carried forward to next selection because the
vacancy has not been caused after his joining and then resigning. The amended Rule
18(2) of the 1962 which was made effective from 31.07.1991 cannot be invoked to
deny the right of appointment to the petitioner to the said vacancies which were
determined under Rule 9 of RPS Rules 1954 w.e.f. 01.04.1991 i.e., earlier to this
amendment hence these vacancies and selections made for them are outside the pale of
this amended Rules which is effective only from 31.0791 and could apply in respect of
next years selections of vacancies of 01.04.92 to 31.03.93. The amended rule is also
exfacie colourable exercise of powers of Rule making authority to deny such
vacancies to persons being next in merit and having right of 2nd preference. The rule
in any case contradicts and is violative of the right of preference ad merit position.
Vacancies occurring on ground of non-joining by a candidate can not be treated as
fresh vacancy and carried over to next year because selections were duly made against
that post for which notification was made and selections done. A post available for
one particular selection cannot be carried over to next selections when persons like the
petitioner were available being next in merit and having valid operative second
preference and have to be offered to next in merit and that person given appointment.
This practice and procedure which is based on sound legal position is duly adopted in
UPSC selections by the Government of India.
9. Respondent No.1 in the reply averred that since amended Rule 18(2) came into
force on July 31, 1991 much prior to the date or appointment which is in the year
1994, the State Government was justified in carrying forward the post remaining
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vacant o account of non-joining of respondent No.4. The provisions of amended rule
had a cogent reasoning behind it. The petitioner has not challenged the validity of
amended Rule 18(2) therefore he is not entitled to any relief.
10. The respondent No.3 Rajasthan Public Service Commission filed reply to the
writ petition on April 7, 1995 and mainly submitted that as per the preference given by
the petitioner his name appeared at merit No. 33 in the merit list of Rajasthan
Administrative Services and at Merit No. 33 in the merit list of Rajasthan Police
Service and further at No.30 in the merit list of Rajasthan Accounts Services. The
respondent No.4 Shri G.P. Gupta's name appeared at No. 21 in the merit list of
Rajasthan Administrative Services as well as at No. 18 in the merit list of Rajastha
Accounts Services further at No. 21 in the merit list of Rajasthan Police Services. The
merit lists were sent to the State Government and it is for the State Government to
give appointments to the selected candidates as per the preferences given by them.
The respondent Commission has nothing to do in issuing the appointment orders. So
far as determination of the vacancies is concerned the same is done by the State
Government and the respondent commission makes selections strictly as per the
requisition sent by the State Government and also as per the provisions of the relevant
Rules and the main relief in the writ petition has been claimed from the State
Government only.
11. The respondent No.4 also filed separate reply to the writ petition and averred
that the vacancies determined and notified as per Notification dated October 19, 1991
were subsequently determined in the year 1993 after Notification of the vacancies and
were raised from 15 posts initially advertised to 23 posts in RPS. If the number of
posts to RPS were taken to be 15, the petitioner being at S.No. 33 in the select list of
general candidates will not even get his present posting not to speak of RPS. The
Government cancelled the appointment order of the respondent No.4 without
considering the genuine request of the respondent in an arbitrary manner and in
violation of the principles of natural justice and administrative norms. It was further
submitted that the respondent No. 4 filed a writ petition before this Hon'ble Court
challenging the order dated August 19, 1994 and his writ petition was allowed on
January 3, 1996. The State of Rajastha was directed to give sufficient time to the
respondent No.4 for joining. The State of Rajasthan was further directed to appoint
him in RPS after his resignation is accepted. The answering respondent was allowed
to join RPS by June 7, 1994 in Public interest by the order dated March 5,1994 and if
the petitioner was aggrieved with this order he should have challenged the order dated
March 5, 1994. The petitioner having failed to avail of that opportunity cannot seek
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any relief in this writ petition. The respondent No.4 further averred in the reply that
the amendment to Rule 18(2) of 1962 Rules was made even before inviting
applications by the RPSC for State Services and as such the petitioner cannot raise a
claim on the basis of unamended rule. The petitioner has concealed the dates of
further determination of vacancies from 9 to 14 (General seats) of RPS with the
oblique motive to base his claim on unamended provision of Rule 18(2) and as such he
did not come with clean hands.
12. The petitioner filed review petition against the order dated January 3, 1996
which was allowed on the ground that the respondent No.4 concealed the fact that no
period was prescribed for joining the service. The maximum period of 30 days was
provided under the Rajasthan Civil Services (Joining Time) Rules, 1981. Since the
respondent No.4 failed to join RPS the writ petition was ordered to be dismissed.
13. I have considered the rival submissions and scanned the material on record.
14. Before proceeding further it is necessary to refer amended rule 18(2) which
read thus -
"Rule 18(2): "If a person selected under Sub-rule (1) above and appointed to a post/service concerned in accordance with the relevant service rules against the vacancies of a particular year for which the Combined Competitive Examination was conducted by the Commission in accordance with these rules does not join on the post offered to him or has resigned or expired in any subsequent year, in that event the said vacancies shall be treated as fresh vacancies."
The words "does not join the post offered to him or" were inserted vide Notification No. F -7(4) DOP/A-II/83 dated July 31, 1991.
15. Mr. S.C. Bhandari, learned counsel vociferously canvassed that the petitioner
is entitled to be appointed in the RPS as per his second preference and being next in
merit as per provisions of Rule 18(1) and Rules 25 and 26 of RPS Rules w.e.f March
7, 1994 the date on which he was appointed in Commercial Taxes Service against the
vacancy of Shri. G.P. Gupta. According to Mr. Bhandari learned counsel, Rule 18(2)
came to be amended w.e.f. July 31, 1991 which has no application in respect of the
specific particular posts is in RPS i.e. of the year April 1, 1991 to March 31, 1992 as
determined in advance under Rule 9 of RPS Rules 1954 prior to April 1, 1991 and
conveyed to RPSC prior to April 1, 1991 for the purpose of holding examinations for
selection thereof. The amended section has been made effective from July 31, 1991
only and thus applicable for posts and examinations of next year i.e. April 1, 1992 to
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March 31, 1993 and not for post of April 1, 1991 to March 31, 1992 and has no effect
on the petitioner's right and entitlement to the said vacancy of April 1, 1991.
16. Mr. Bhandari next contended that as per Rule 10(4) and Rule 18 of Rules
1962 the selections and appointments were required to be made strictly in order of
merit and as per preferences given by the candidate. The petitioner had not changed
the option/preference at any time as such his second preference for RPS was valid and
operative and he was entitled to be appointed to the RPS against the vacancy caused
by G.P. Gupta. In support of his submissions Mr. Bhandari, placed reliance on the
following authorities – A.V. Bhogeshwarudu Vs. Adhra Pradesh Public Service
Commission and anr. (JT 1989 (4) SC 130), Bhag Singh Vs. State of Punjab and
others (1983 Lab. I.C. 415), Kumari Shilpi Ramdeo Vs. State of Rajasthan and others
(S.B. Civil Writ Petition No. 2084/90 decided on August 212, 1990). Kumari Anita
Vs. State of Rajasthan and others (S.B. Civil Writ Petition No. 2214 of 1990 decided
on May 20, 1991), Kumari Shipi Ramdeo Vs. State of Rajasthan and others (D.B.
Civil Special Appeal No. 151/91 decided on July 3, 1991) Mariyakutty Vs. Convener,
Municipal Common Service and Director of Municipalities and ors. (1975 (1) SLR
188). The State of Mysore Vs. S.R. Jayaram (1968 SLR 92), Krishi Upaj Mandi
Samiti Jodhpur etc., Vs. State of Rajasthan and others (1982 RLR 762). Sudarshan
Singh and others Vs. The Government of India and others (1980 (3) SLR 199). P
Sriramaiah Vs. P. Purushothama Rao and another (1974 (1) SLR 54), Shyamal Kumar
Sarkar and others Vs. Union of India and others (1972 SLR 627), R. Rajagopal Reddy
and others Vs. Padmini Chandrasekharan (1995) 2 SCC 630), P. Mahendran and
others Vs. State of Karnataka and others (AIR 1990 SC 405), and A.A. Calton Vs. The
Director of Education and another (1983 All L.J. 516).
17. In order to appreciate the contentions of Mr. Bhandari, the learned counsel for
the petitioner, I have closely scanned amended rule 18(2). As seen before the words
"does not join on the post offered to him or" were inserted vide Notification dated July
31, 1991. A plain reading of this amended rule demonstrates that it has been made
applicable only in that event when a person is selected and appointed to a post, but he
does not join on the post offered to him. In this situation the said vacancy shall be
treated as fresh vacancy. To my mind, in any such situations arose after July 31, 1991
where a person refuses to join on the post offered to him. Amended Rule 18(2) shall
be applicable. G.P. Gupta was appointed vide order dated March 3, 1994 and he did
not join on the post offered to him. Therefore the vacancy created against the post of
G.P. Gupta shall be treated as fresh vacancy. It is difficult to agree with Mr. Bhandari,
learned counsel that amended Rule 18(2) is not applicable in the instant case as the
684
posts of RPS were determined in advance under Rule 9 of RPS Rules 1954 prior to
April 1, 1991 and conveyed to RPSC prior to April 1, 1991. On a close scrutiny of
Rule 18(2) it appears that vacancy may be of any year but if after July 31, 1991 it is
not filled on the ground that the candidate does not join the post, the vacancy so
created shall be treated as fresh vacancy. Therefore eve if it is held that the second
preference of the petitioner for the post of RPS was valid effective as per Rule 10(4),
the petitioner is not entitled to be appointed to the RPS against the vacancy in terms of
amended Rule 18(2). The ratio indicated in the authorities cited by Shri. Bhandari is
not applicable to the facts of this case in view of amended Rule 18(2).
18. Their Lordships of the Supreme Court in Thrissur District Co-operative
Bank Limited Vs. Delson Davis P. & Ors. (2002 (2) SLR 410) indicated thus:-
"2. On completion of the selection process, the respondent No.1 was included in the list as having secured second rank while one Mr. T.D. Rolly Stood first. Mr. Rolly joined the service and he was appointed as data entry officer. After some time he resigned from service as he got better placement in some other institution. The respondent No.1, it appears approached the bank and requested appoint him in that vacancy. Though he was appointed temporarily, he was not given permanent employment. Under those circumstances, the respondent No.1 approached the High Court for a direction that he should be appointed on permanent basis. The High Court examined the matter and found that when the previous incumbent, who had been selected, had left the post and vacancy being available, the appropriate course was to have appointed the respondent No.1 and he had a right to be considered for the appointment. 3. We fail to understand the reasoning of the High Court in this regard. When once the selection process is complete and appointment had been made, that process comes to an end and if any vacancy arises on the appointee having joined the post leaves the same, it must be treated as afresh vacancy and fresh steps in accordance with the appropriate rules should be taken".
19. For the aforesaid reasons and in view of the ratio propounded in Delson
Devis case (Supra) I do not find any merit in the writ petition and the same is
dismissed without any orders as to costs.
***
685
D.B.Civil W.P.No.1514/2001 and D.B.Civil W.P.No.2376/2001
D.D. 6.8.2002 Hon'ble Mr. Justice Arun Kumar, Chief Justice
Hon'ble Mrs. Justice Gyan Sudha Misra
Suman Saharan & Others – Petitioners Vs. State of Rajasthan & Others – Respondents Recruitment for Rajasthan Judicial Service After the selection process a select list of 81 persons and a reserve list of 28 persons as against 81 vacancies notified were prepared. After 81 persons in the Select list were appointed, the petitioners who were in the reserve list approached the High Court for operating the reserve list. The question is with regard to the enforceability of the reserve list. Held – General principles of law in relation to operation of select list and reserve list are as under:
(1) The candidates who are placed in select list or reserve list have no vested legal right of appointment. Mandamus cannot be issued to direct appointment of persons from such lists. The administration may have strong reasons to abandon the selection process in a given case. Thus, mere fact that a person is placed in the select list does not confer a vested right of appointment on him.
(2) It is incumbent upon the authorities to take into account existing and
anticipated vacancies before issuing an advertisement for recruitment to a particular post. It is not a matter of course that authorities can fill up vacancies other than the advertised. This means that normally appointments cannot be made against unadvertised vacancies, which are not subject matter of selection. A waiting list or a reserve list cannot be used as a perennial source of recruitment for filling posts which were not advertised.
(3) On appointments being made, the select panel ceases to exist and once the
selection process is over, reserve list cannot be operated.
Writ petitions were dismissed Cases referred: 1. (1992) 1 SCC 105 Dr.Umakand Vs. Dr. Bhikalal Jain & Ors. 2. (1999) 3 SCC 696 Virender S.Hooda and Ors. Vs. State of Haryana & Anr. 3. (2000)1 SCC 600 A.P.Aggarwal Vs. Govt. N.C.T. of Delhi and Ors. 4. (2000) 9 SCC 283 Munna Roy Vs. Union of India & Ors. 5. JT 2001 (5) SC 461 Surinder Singh & Ors. Vs. State of Haryana & Ors 6. JT 2002 (2) SC 329 Thrissur District Co-operative Bank Ltd.Vs. Delson Davis P. & Ors.
ORDER
By these two writ petitions under Article 226 of the Constitution of India the
petitioners who claim to have been placed in the reserve list for recruitment to
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Rajasthan Judicial Service ("RJS" for short hereinafter) have sought direction that the
reserve list be operated and they should be given appointments to the posts of Civil
Judge in the RJS.
Briefly, the facts are that on 19th February, 1998 the Registrar General of the
Rajasthan High Court addressed a communication to the Secretary to the Government
of Rajasthan, Law and Legal Affairs Department, Jaipur informing that the number of
existing and anticipated vacancies in the RJS upto 31st December 1998 had been
worked out to be 81. The communication gave brake up regarding reservations in
view of the judgment of the Supreme Court in India Sahni Vs. Union of India,
reported in AIR 1993 SC 427. A request was made in the said letter that requisition be
sent to the Rajasthan Public Service Commission, Ajmer ("RPSC" for short
hereinafter) for advertising 81 vacancies for recruitment to the RJS. In the end, it is
stated in the said letter –
"You are further requested to ask the RPSC to prepare a reserve list of the candidates
upto 50% of the advertised vacancies as provided in Rule 19 of the Rajasthan Judicial
Service Rules, 1955."
We have quoted the portion of the said letter because a lot will turn on the
same for purpose of decision of this case. In pursuance of the requirement notified by
the High Court to the State Government an advertisement was issued on 19th
December 1998 regarding 81 vacancies in the RJS to be filled through direct
recruitment. In the advertisement it was mentioned that the number of posts may be
increased or decreased. A revised advertisement in respect of the aforesaid posts was
issued by the RPSC on 4th January, 1999. The advertisement only extended the last
date for submission of application forms. This advertisement was published in
'Rajasthan Rozgar Sandesh' on 1st February, 1999. The advertisement provided that
the selection process was to comprise of written test followed by interview and final
merit list was to be prepared on the basis of the aggregate marks secured in written
examination and interviews. By a notification dated 11th January, 1999 issued by the
State Government 28 new posts were created in the RJS. It is the case of the
petitioners that these 28 posts were not included in the 81 posts notified by the High
Court as vacant posts to the State Government and for which the RPSC had issued
advertisement for recruitment. The petitioners claim that the reserve list was meant to
take care of such a situation. The reserve list consisting 28 names, therefore, has to be
operated and appointments are to be made from the candidates in the said list. On the
other hand, the stand of the respondents which include the State Government, the High
687
Court and the RPSC, is that these posts are included in the 81 posts notified in the
advertisement for purposes of selection. The respondents have stated that all existing
vacancies as on 19th December, 1997 and anticipated vacancies upto 31st December,
1998 including 30 new courts to be created in terms of statement made by the State
Government before the High Court for opening 180 more courts upto the end of Ninth
Five Year Plan, i.e. upto 31st December 2002, constituted 81 vacancies for which
requisition was sent to the RPSC. The respondents have stated in clear and
unambiguous terms that the said new posts were taken into consideration while
determining the number of vacancies as 81.
Written examinations were held on 23rd and 25th May, 1999 while interviews
were held from 27th October to 4th November, 1999. The result of the selection
process was declared on 4th November, 1999 by the RPSC. 81 persons were placed in
the select list while 28 persons were placed in the reserve list by the RPSC. The
petitioners claim that they are included in the said reserve list of 28 persons. On 25th
November, 1999, the RPSC forwarded the main select list to the State Government.
On 24th May, 2000, the reserve list was forwarded by the RPSC to the State
Government. On 30th June, 2000, appointment orders were issued in respect of 81
persons placed in the select list. Ultimately, the High Court decided not to operate the
reserve list which led to the present writ petitions being filed on 20th March, 2001 and
9th April 2001 respectively. The High Court has also stated that soon after completion
of this selection process, fresh process was started.
The question for consideration in the present cases, therefore, is, what is the
efficacy and legal force of the reserve list? In other words, what are the legal rights of
the persons placed in the reserve list prepared by a Public Service Commission, in
pursuance of recruitment process undertaken by it?
The learned counsel for the petitioners conceded that for determining the above
question, the most important thing to be seen is the provision contained in the relevant
rule. In the present case, the relevant rule is Rule 19 of the Rajasthan Judicial Service
Rules 1955, which is reproduced as under:-
"19. List of candidates approved by the Commission, - (1) The Commission shall prepare a list of the candidates recommended by them for direct recruitment in order of their proficiency as disclosed by their aggregate marks. If two or more of such candidates obtain equal marks in the aggregate, the Commission shall arrange them in order of merit on the basis of their general suitability for Service.
688
Provided that the Commission shall not recommend any candidate who has failed to obtain a minimum of 45% of marks in aggregate both of Written and Oral Examinations. Provided further that while selecting candidates for the vacancies so advertised, the Commission may (1) if intimation of additional requirement is sent to the Commission before the selection and (ii) if suitable persons are available, keep on their reserve list more candidates whose number shall not exceed 50% of the advertised vacancies, the names of such candidates may be recommended on requisition to the appointing authorities within six months from the date on which the original list is forwarded by the Commission to the Government. (2) Two copies of such list shall be submitted by the Commission to the Rajpramukh."
The learned counsel for the petitioners fairly stated the correct legal position,
i.e. the efficacy or enforceability of the reserve list depends on the status given to it
under the Rules and the relevant facts on record. The requisition sent by the Registrar
General of this Court, relevant portion whereof has been quoted hereinbefore, is to be
seen in the context of the second proviso to Rule 19. Does the said communication
from the Registrar General satisfy the requirements of the second proviso to Rule 19 is
a question which we consider as fundamental for decision of the present case. When
we analyse the provision, the following conditions emerge:-
(a) The intimation regarding preparation of reserve list should be received by the
Commission while selecting candidates for the vacancies advertised. (b) The intimation has to be for additional requirement.
(c) It should be sent before selection.
(d) Suitable persons should be available.
(e) Such suitable persons should be kept on the reserve list which should not
exceed 50% of the advertised vacancies.
(f) The names on the reserve list are to be recommended on requisition to the appointing authority within six months from the date on which original list was forwarded by the Commission to the Government
In the present case, the communication sent by the Registrar General does not
satisfy Conditions (a) and (b). It will be seen from the letter of the Registrar General,
relevant potion whereof has been quoted hereinabove, that the requisition regarding
reserve list was included in the same letter by which the Commission was required to
prepare a select list. Thus, the requisition was not sent during the period when the
Commission was selecting candidates. Secondly, the intimation does not talk of
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additional requirement. It simply says – "Prepare a reserve list – as provided in Rule
19 of the Rajasthan Judicial Service Rules, 1955."
A bare perusal of Rule 19 as a whole, with reference to the second proviso
shows that a reserve list envisaged therein has to be regarding additional requirement.
The letter of the Registrar General under reference does not talk of additional
requirement at all. It follows from the language used in the said letter while referring
to reserve list that the same has been mentioned in a very routine manner. If the
additional requirement was envisaged right at the initial stage when the requisition for
a select list was being sent, it could have obviously been included in the number of
posts to be filled for which the main list was sought. Therefore, it is apparent that
there was no additional requirement in contemplation or envisaged when the initial
letter was written. This inference drawn by us fits in with the statements made on
affidavit by the respondents filed in reply to the writ petitions that the total number of
vacancies was of eighty one posts when the requisition was sent to the RPSC through
the State Government. The respondents have categorically stated that this figure of 81
included the 30 new posts which were to be created during the year 1998 as per the
statement made by the State Government before the High Court regarding creation o
180 new courts upto 31st March, 2002 on yearly basis. In our considered view, the
reserve list in the present cases does not satisfy the requirements under Rule 19 and
cannot be said to be a reserve list which confers any right for appointment on the
petitioners.
As already observed, the legal status of a reserve list depends on the relevant
rule. Further the relevant rule is to be read in the light of facts on record. As a
General rule, it may not be wrong to state that a reserve list cannot be operated for
vacancies which were not in anticipation or contemplation at the time of initiation of
selection process. A reserve list is normally intended to fill up gaps arising on account
of non-joining or the lie by the selected candidates. The reason being that for a rare
case, the entire selection process may not have to be gone through all over again.
However, if the relevant service rule provides that the reserve list be prepared to take
cadre of future vacancies the appointing authority may have to draw upon the reserve
list depending on the period prescribed in the rule for which such a list can be kept
alive. In the present case, Rule 19 is the only relevant rule. The said rule has the
provision regarding life of the reserve list that he requisition regarding the reserve list
should be received from the appointing authority within six months from the date on
which the original list is forwarded by the Commission to the Government. The Rule
does not refer to a reserve list being prepared for purposes of future vacancies nor does
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it talk of life of the reserve list. Normally when a reserve list is intended for future
vacancies life of the list is prescribed in the relevant rule itself. A reserve list cannot
remain alive for indefinite period. It adversely affects the right to seek employment of
persons who acquire eligibility for the posts in question in future. In our view, Rule
19 does not confer the status of a select list on the reserve list envisaged in the said
Rule. The Rule does not confer any right on the candidates on reserve list with respect
to future vacancies.
The learned counsel for the parties cited various cases in support of their
respective contentions. In our view, for deciding the present cases, what is of utmost
important is the facts on record and the relevant Rule under consideration. We have
discussed the position of the present case in that light. The cases cited before us turn
on their own facts. Some of the cases cited before us need be mentioned. They are:
A.P.Aggarwal Vs. Govt N.C.T. of Delhi and Others (2000) 1 SCC 600: The facts of this case are totally different and the case has no bearing on the
controversy in hand. The appellant and another candidate were the only two
candidates included in the panel prepared for filling up a post of Member, Sales-Tax
Appellate Tribunal. The other candidate joined in December, 1997 but had to leave on
4th January, 1998 because he was selected as Member, Income Tax Appellate
Tribunal. The appellant's contention was that he should have been appointed when the
other candidate left. In respect of this, the Government initiated process for fresh
selection. The decision of the case turned on the provision contained in Section 13(4)
of the Delhi Sales Tax Act, 1975, according to which, a vacancy for the membership
of the Appellate Tribunal was to be filled up as soon as practicable. The relevant OM
dated 14.5.1987 issued by the Central Government also provided that serve lists may
be operated in cases where a vacancy is created by a candidate resigning the post or in
the event of his death within a period of six months from the date of his joining the
post. Keeping these two provisions in view it was held that the appellant who was
also included in the select panel ought to have been given appointment on resignation
by the person initially appointed. Thus, in this case, both the candidates were on the
select panel and secondly, the statute as well as Government instructions required the
post to be filled up as soon as practicable. Therefore, appointment was given to the
next person on the select list.
The facts of the present cases noted above are entirely different. The
petitioners were not on the select list. All the vacancies during the particular year for
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which selection process was undertaken were included in the requisition and for the
vacancies of the subsequent period fresh selection process was immediately started
after completion of the selection process in question. Therefore, this case is of no
assistance to the petitioners.
Virender S.Hooda and others Vs. State of Haryana and another (1999) 3 SCC 696:
In 1991, the Haryana Public Service Commission advertised 12 posts of
Haryana Civil Services. On completion of selection, final list was published on
19.6.1992. The appellants did not find place in the merit list. Their contention,
however, was that some of the selected candidates did not join and, therefore, the
appellants should have been considered against the vacancies so arisen, depending
upon the ranking obtained by the appellants in the competitive examination. They
relied on some circulars to the effect that vacancies arising within six months from
receipt of the select list should be filled up from the waiting list maintained by the
Commission. The case was decided on the basis of the circulars of the Government
and the State was directed to consider the cases of appellants for appointment.
The present case is clearly distinguishable on facts. It is not a case of selected
candidates not joining, nor there are any circulars which can be relied upon or
enforced as was in the case before the Supreme Court. The petitioners in the present
case are claiming appointments to additional posts, which as per the case of the
respondents never formed part of the selection process.
Dr. Umakand Vs. Dr. Bhikalal Jain & others (1992) 1 SCC 105:
This case was strongly relief upon by the learned counsel for the petitioners.
However, in our view, the facts in this case are totally different and, therefore, the case
is of no assistance to the petitioners. The University of Rajasthan had invited
applications for the post of Professor in the Department of Botany. The Selection
Committee constituted under Section 5 of the relevant Act selected one 'N' for the said
post and also recommended the name of the appellant in the reserve list in terms of
Section 6(4) of the Act. The syndicate approved the recommendation of the
Committee and appointed 'N' for the post. Initially, the reserve list was to remain
valid upto six months but later the Syndicate by its resolution passed in its special
meeting extended the period of validity of the list to one year from the date of
approval of the Syndicate. Before expiry of the extended period of operation of the
reserve list, 'N' retired from service and thereupon appellant who was already in the
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reserve list was appointed to the post of Professor in Botany. Those who were not
selected filed a writ petition in the High Court contending inter alia that once the
selected person joins the post, the reserve list exhausts itself. The High Court
accepted the contention that the reserve list stood exhausted and held that the
appointment of the appellant was illegal. The Supreme Court allowed the appeal
holding that was clear from a reading of Section 5 with Section 6(4) that the Selection
Committee constituted shall recommend not only the candidates selected by it in order
of merit but shall further prepare a reserve list to the extent of 50% of vacancies of
vacancies and persons kept in reserve list will be considered as having been selected
for the concerned post and shall be entitled for appointment if any vacancy is caused
during the validity period of the reserve list.
There is no such statutory provision in the case before us. Further, in the
present case, the petitioners are not claiming appointment to any vacancy occurring
after the posts are filled from the select list. The petitioners are seeking appointment
to additional posts, which according to them, occurred after the selection process had
started, which assertion has been denied by the respondents. Thus, the claim of the
petitioners in the present case is regarding additional posts and further the petitioners
claim that the reserve list which contains their name, is as good as the select list.
According to them, there is no difference between the two lists. As already discussed
hereinbefore, we have accepted the case of the respondents that the alleged additional
posts were taken into consideration while computing the vacancies as eighty-one.
Therefore, there is no occasion to contend that there were additional twenty-eight or
thirty posts to which appointments are being claimed by the petitioners. Another
important distinguishing feature between Dr. Umakant's case (supra) and the present
case, is that the University Syndicate had extended the life of the reserve list and the
vacancy had occurred during the extended life of the reserve list. Therefore, we are
unable to derive any assistance from Dr. Umakant's case (supra) for the proposition
being canvassed on behalf of the petitioners.
On the other hand, the learned counsel appearing for the respondents cited
several judgments in support of their case that once appointments are made and the
selection process is complete, the reserve list cease to operate. In the first instance,
our attention was drawn to Thrissur District Cooperative Bank Ltd. Vs. Delson Davis
P. & others, reported in JT 2002 (2) SC 329. The facts in this case were that the
appellant bank had invited applications for posts of Clerk-cum-Cashier, Data Entry
Officer and Peons. So far as the psot of Data Entry Officer is concerned, there was
only one post. On completion of the selection process, one T.D. Rolly was placed at
693
No.1 while the respondent No.1 was placed at second position in the select panel.
Rolly joined the service, however, after some time, he resigned. The respondent No.1
approached the Bank seeking appointment in place of Rolly. He was given temporary
appointment. The respondent No.1 approached the High Court and the High Court
gave direction for giving permanent appointment to the respondent No.1. The Bank
appealed to the Supreme Court. The Apex Court observed, "when once the selection
process is complete and appointment had been made, the process comes to an end the
if any vacancy arises on the appointee having joined the post leaves the same, it must
be treated as a fresh vacancy and fresh steps in accordance with appropriate rules
should be taken." The Bench relied on an earlier decision of the Supreme Court, in
State of Punjab Vs Raghbir Chand Sharma, reported in AIR 2001 SC 2900, which was
a case in which applications were invited in respect of only one post. The first
candidate in the select panel accepted the offer and came to be appointed. On
resignation by the candidate so appointed, did other candidates on the panel have a
legitimate right to claim appointment? The Supreme Court expressed the view that on
appointment being made the select panel ceases to exist.
In State of Bihar Vs. The Secretarial Assistant Successful Examinees' Union,
1986f & others reported in JT 1993 (6) SC 462, it was held that a panel candidate on
the select list did not have a right to appointment merely on account of being
empanelled. Empanelment at best, is a condition of eligibility for purposes of
appointment and by itself does not amount to selection or create a vested right to be
appointed unless relevant service rules provide for it. Some principle was reiterated in
Munna Roy Vs. Union of India and others, reported in (2000) 9 SCC 283.
Surinder Singh & others Vs. State of Haryana & others, reported in JT 2001
(5) SC 461, was a case in which posts of Additional Ahalmads were to be filled up in
two phases. Applications were invited for 10 posts for the first phase. Vacancies of
the first phase were filled up. However, 10 vacancies of second phase were also filled
up without issuing any advertisement for the second phase. It was held that
appointments of the candidates in the second phase were rightly quashed by the High
Court. The District Judge had tried to justify the appointments of the second phase on
the ground of urgency and to save time and expenses for holding another examination
for purpose of selection. The Supreme Court observed that if such a reasoning is to
prevail, then most of the subsequent selections can be made out of any previous
selection without advertising the vacancies. The reasons for selection cannot rob
future prospective candidates of opportunity and right to be considered for
appointment. When an advertisement specifies a particular number of posts, only that
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particular number of posts are to be filled. In this case, the advertisement was for 10
posts. Selection for 20 posts which were to be filled up in two phases with respect to
two different years, was held to be wrong and unjustified.
Our own High Court had occasion to observe in this connection, in Maharshi
Dayanand University, Ajmer Vs. R.K.Vyas, reported in 2002 (1) WLC (Raj.) 87 that a
reserve list lapses on appointment of duly selected persons.
Another recent Division Bench decision of this Court in Dr. M.K.Gaur &
others Vs. State of Rajasthan & another, reported in 2002 (2) RLR 39, to which one of
us (the Chief Justice) was a party, contains observations which are relevant for the
point in issue, so far as the legal aspect is concerned. On facts, the case was different
because of the contents of the relevant rules. On the legal aspect, this Court examined
various relevant decisions of the Apex Court. The net result of the discussion on the
legal issue was that requisition by the Government from reserve list can be only in
relation to the select list prepared by the R.P.S.C. and not beyond that. It cannot in
any case be in relation to posts which were not the subject matter of selection. It was
held that appointments cannot be made from reserve list on unadvertised vacancies
which re not subject matter of selection. Rule 20 of the relevant Rules provided for
preparation of a select list by the Commission, in accordance with merit of candidates
and it was to be forwarded to the Government. Proviso to Rule says that the
Commission shall prepare a reserve list to the extent of 100% of the select list and that
shall be operated if requisition is made by the Government within the existence of the
reserve list. The requisition by the Government from the reserve list shall be in elation
to the select list prepared by the Commission and not beyond that or not in relation to
posts which were not the subject matter of selection under Rule 16. As soon as the
selection of the candidates of the advertised vacancies culminates into giving
appointments on the vacancies advertised, the reserve list comes to an end. It revives
only in the eventuality of select list becoming re-operative on account of non-joining
of selected candidates or on appointed candidates leaving the posts soon after joining
during the existence of the select list which has its own life under the rules.
General principles of law that emerge in relation to operation of select lists and
reserve lists are as under. We, however, make it clear that these are only general
principles and may not hold the field in cases where the position of the relevant
service rules is to the contrary.
695
(1) The candidates who are placed in select list or reserve list have no vested legal right of appointment. Mandamus cannot be issued to direct appointment of persons from such lists. The administration may have strong reasons to abandon the selection process in a given case. Thus, mere fact that a person is placed in the select list does not confer a vested right of appointment on him.
(2) It is incumbent upon the authorities to take into account existing and
anticipated vacancies before issuing an advertisement for recruitment to a particular post. It is not a matter of course that authorities can fill up vacancies other than the advertised. This means that normally appointments cannot be made against unadvertised vacancies, which are not subject matter of selection. A waiting list or a reserve list cannot be used as a perennial source of recruitment for filling posts which were not advertised.
(3) On appointments being made, the select panel ceases to exist and once the
selection process is over, reserve list cannot be operated.
Applying the above principles to the facts of the present case, it follows that
the select list was operated and the 81 candidates of the select list were offered
appointments. All the advertised vacancies were filled and the selection process came
to an end. An additional fact in the present case is that fresh selection process was
started soon after the selection process was completed. This renders the case of the
petitioners, who were on the reserve list, totally devoid of any merit. The candidates
on the reserve list have no case.
DB Civil Writ Petition No.2376/2001 – Durga Singh Vs. State of Rajasthan and another:
An additional argument raised on behalf of the petitioner in this case is that the
petitioner was the senior most candidate on the reserve list, i.e. he was at the top of the
reserve list. One of the candidates in the select list, namely, A.S.Agarwal resigned
from service after a few months of joining and, therefore, the petitioner claims he
should have been given appointment on the vacancy caused due to resignation of
A.S.Agarwal.
In normal course, it could be possible to say that on vacancies occurring on
account of resignation or death of candidates appointed from the select list, vacancies
should be filled from the reserve list. But in the present case, such a claim by the
candidate in the reserve list is not tenable. The reason for this is that A.S.Agarwal
resigned after about five months of joining. He joined on 1.8.2000 and resigned on
6.1.2001. In the meanwhile the selection process was over. It has already come on
record that soon after completion of the selection process on 30.6.2000, it was decided
to start fresh selection process. On such a decision being taken, the reserve list ceased
to have any force or value.
696
The reserve list could not be said to have been kept alive till January, 2001
when A.S.Agarwal resigned. It was never known that A.S.Agarwal was going to
resign in January, 2001. Therefore, the petitioner in the present case has no right to
seek appointment merely on the basis of the fact that he was a Serial No.1 on the
reserve list. The claim of the petitioner is without any merit and deserves to be
rejected.
Both the writ petitions are accordingly dismissed leaving the parties to bear
their respective costs.
***
697
S.B. CIVIL WRIT PETITION NO. 2804/2002 D.D. 3.12.2002
Hon'ble Mr. Justice Praksh Tatia
Man Singh – Petitioner Versus The State of Rajasthan & Ors. - Respondents
Recruitment to the post of Motor Vehicle Sub-Inspectors Petitioner was not selected because he was not possessing requisite qualification namely, heavy motor vehicle driving licence though declared to have passed in the examination. The petitioner contended that he should have been permitted to produce the driving licence before the date of start of interview. Held – The qualifications are to be seen as on the date of advertisement and not on the date of interview. Further held – Wrong judgement passed in favour of one person does not entitle others to claim the same benefits. Writ petition was dismissed Cases referred:
1. 1997 (4) SCC 18 Ashok Kumar Sharma & Ors. Vs. Chander Shekhar & Anr. 2. 2000 (V) SCC Page 262 Bhupendrapal Singh & Ors. Vs. State of Punjab & Ors. 3. (2000) 9 SCC 94 State of Bihar vs. Kameshwar Prasad Singh
ORDER
Heard learned counsel for the parties.
2. The petitioner has challenged the action of the respondents by which the
petitioner's candidature for the post of Motor Vehicle Sub-Inspector was rejected by
the Rajasthan Public Service Commission (for short 'the RPSC') order dated
21.06.2002. Brief facts of the case are that the petitioner in pursuance of the
advertisement dated 01.10.2001 published on15.10.2001applied for the selection to the
post of Motor Vehicles Sub-Inspector. The petitioner took the examination and was
declared passed in that examination but on 21.06.2002 the petitioner was informed by
the RPSC that after declared of the result it was found that he was not eligible on the
ground that he was not possessing requisite qualification having Heavy Motor Vehicle
Driving Licence.
3. According to the learned counsel for the petitioner the action of the
respondents is contrary to law. It is submitted that the petitioner is being
discriminated. The persons who yet appeared in final year examination are permitted
to produce their certificates till at the time of interview whereas it is denied in the
matter of driving licence. According to the learned counsel for the petitioner as per
the law laid down by the Hon'ble Supreme Court, eligibility is to be seen as on the
date of interview and not as on the date of advertisement.
698
4. The learned counsel for the petitioner also submits that this Court in S.B. Civil
Writ Petition No. 4742/2002 issued notice for final disposal to the respondent and
granted interim ex parte order and permitted the candidate to appear in the interview
and in another writ Petition No. 2234/2002 passed an order to keep one post vacant for
the petitioner of that case. The learned counsel for the petitioner relied upon the
judgment rendered in the case of Vishnu Traders Vs. State of Haryana and Ors.,
reported in 1995 Supp(1) SCC 461 wherein the Hon'ble Apex Court held that there is
a need for consistency of approach and uniformity in the exercise of judicial discretion
respecting similar cases and the desirability to eliminate occasions for grievances of
discriminatory treatment requires that all similar matters should receive similar
treatment except where factual differences require a different treatment. Therefore,
learned counsel for the petitioner submits that the writ petition of the petitioner
deserves to be given same treatment of keeping it pending and same interim order be
passed.
5. Learned counsel for the respondent submits on merits that the matter is
squarely covered by the various judgments of the Hon'ble Apex Court. One of which
is case of Bhupendrapal Singh and Ors. Vs. State of Punjab and Ors. reported in
2000(V) SCC page 262, wherein the Hon'ble Apex Court held that if cut of date is
laid down in the relevant rules for qualification it has to be followed otherwise it may
be prescribed in advertisement, and if no such date is prescribed, eligibility has to be
determined as on the last date of receipt of applications. The Hon'ble Apex Court
held that State of Punjab was following prompt practice of determining eligibility
conditions as on the last date of interview, the practice was directed to be
discontinued.
6. Before proceeding to examine the legal effect of the judgment relied upon by
the learned counsel for the petitioner delivered in the case of Vishnu Traders Vs. State
of Haryana and others (1995 Supp(1) SCC 461), it will be relevant to refer the facts of
the present case.
7. The present writ petition was filed on 07.08.2002 and was listed in this Court
on 09.08.2002. Adjournment was sought by the petitioner, therefore, the case was
listed in Court on 19.08.2002. Again on request, it was adjourned to 21.08.2002 but
before different Bench on last two occasions. On 21.08.2002, brother justice Shri. S.K.
Garg passed the order to issue notice to the respondent for writ petition as well as of
the stay petition. At this stage it was not pointed out that this Court has already issued
notice of final disposal in SBC Writ Petition No. 2234/2002 and passed the interim
699
order keeping one post vacant. Therefore, the order dated 21.08.2002 was passed by
the Court in presence of the petitioner and at that time, no request was made to pass a
similar order nor the above order dated 11.07.2002 was placed before the Court on
21.08.2002. When the court has issued notice to show cause to the respondents then
the respondents have every right to show cause why the writ petition may not be
admitted or interim order may not be granted, otherwise the very purpose of order
dated 21.08.2002 will frustrate. The learned counsel for the respondents again relied
upon the order of this Bench delivered in S.B. Civil Writ Petition No. 4742/2002
wherein also this Court issued notice for final disposal and granted and interim order
after recording the plea raised by the petitioner who was present in person on
29.11.2002. On 29.11.2002, it was not pointed out by the petitioner in S.B. Civil Writ
petition No. 2802/2002, another Bench has not passed any interim order. It appears
that when different advocates appear or the petitioner appears in person in an identical
matter, they may not have knowledge of the interim order passed by the Courts and
that may be a bonafide reason for not pointing out the earlier orders. Here in all cases,
it is clear that the earlier orders were not placed before the Bench who passed the
different orders.
8. In the light of the above facts, we have to examine the legal position as
understood by the learned counsel for the petitioner is correct or not. First of all the
Hon'ble Apex Court was seized of the matter wherein the grievance of the petitioner
was that condition for grant of stay vary widely from Bench to Bench in the High
Court and that while in an earlier writ petition and the connected cases, a Division
Bench had ordered unconditional stay on 17.06.1993 and continued the same order on
07.09.1993 but, in the case before the Hon'ble Supreme Court, the Bench of the High
Court imposed a condition of payment of 25% of the demand. The Hon'ble the Apex
Court, after considering the facts of the case observed as under:-
"In the matters of interlocutory orders, principle of binding precedents cannot be said to apply. However, the need for consistency of approach and uniformity in the exercise of judicial discretion respecting similar causes and the desirability to eliminate occasions for grievances of discriminatory treatment requires that all similar matters should receive similar treatment except where factual differences require a different treatment so that there is assurance of consistency, uniformity, predictability and certainty of judicial approach".
9. A bare perusal of the above decision of the Hon'ble Apex Court, it is clear that
Hon'ble the Apex Court specifically held that in the matter of interlocutory orders,
principle of binding precedents cannot be said to apply but, thereafter, held that there
700
must be similarity in the orders provided the facts are same. Therefore, the Hon'ble
Supreme Court has not held that even in the matter where there occurs differences of
facts even then similar orders are required to be passed.
10. It may result into great hardship to the litigants also if the court looking to the
facts of the case and having sufficient time to serve upon notice the respondent,
refuses to pass interim order so that other party may also be heard without causing any
hardship to the petitioner but on this ground alone, that in earlier petition, no stay
order was granted, in another petition stay sought when the threat is imminent without
there being any change in the fact of the case except to approaching of the petitioner
of subsequent petition late in court with all the sufficient reasons available to the
petitioner. In this circumstance, if the court refuses to pass the interim order for which
the court was satisfied even on earlier occasion but has not passed the interim order
looking to the circumstances in which the petitioners came before the court without
there being any change in "fact of the case".
11. Even requirement of rule of procedure is that to pass similar order even there is
a distinction here in this case. The earlier cases were cases in which and interim
orders were passed and the writs were kept pending and the writ petitions have not
been admitted by the court. Here in this case, the circumstances and the fact have
changed in view of the reason that after notice, the respondents have put in
appearance, filed their replies. The petitioner has also submitted his rejoinder and the
case is matured for hearing for admission which may result into, either admission of
the writ petition or rejection of the writ petition and in case the court thinks proper to
admit the writ petition, the court may pass interim order or may refuse the interim
relief after satisfying with the arguments of the respondents. None of the above facts
were available in any other case referred by the learned counsel for the petitioner.
Issuing notice for final disposal in any petition, cannot preclude the court from
deciding finally another petition in which the pleadings are complete and the purpose
of issuing notice has already been served with the appearance of the respondents with
their defences. It is also in the interest of justice to settle the dispute as early as
possible so that similarly situated persons may know their position in law and may not
remain in illusion or dream of getting same relief or the respondents may not proceed
on a wrong assumption of denying the relief to the legitimate person. It is desirable to
settle the controversy as early as possible finally rather than to keep it pending and
thereby inviting unnecessary litigations. The finality of the order also permits the
aggrieved party to challenge the order by filling appeal which is also in the interest of
justice and shorten the time of litigation. Therefore, the request of the learned counsel
701
for the petitioner that even when the pleadings are complete, this Court should only
pass an interim order of stay and refuse to take cognizance of the order passed on
21.08.2002 of issuing notice to the respondent to show cause notice with respect to the
pleading taken by the petitioner, cannot be accepted. It is further clear that the stage
has changed substantially in the present writ petition from the stage which was
available in earlier writ petition in which the interim order were passed. Therefore,
there is no force in the submission of the learned counsel for the petitioner to keep the
writ petition pending and pass the interim order in favour of the petitioner by ignoring
all the pleadings raised by the respondents.
12. On merits, the learned counsel for the petitioner relied upon the judgment of
the Hon'ble Supreme Court delivered in the case of Ashok Kumar Sharma and another
Vs. Chander Shekher and another and connected matter reported in 1993 Supp (2)
SCC 611, wherein the Hon'ble Apex Court held that "In order to have wider selection,
it was in public interest to entertain applications of the candidates who did not possess
requisite educational qualification on the date of application but possessed it on the
date of interview". The learned counsel for the respondents pointed out that the said
judgment was reviewed by the Hon'ble Apex Court and the Hon'ble Apex Court held
that the view taken in the above judgment is unsustainable and amounted to clear error
of law apparent on the face of record. This review judgment is reported in 1997(4)
SCC 18. Therefore, the controversy is settled by the Hon'ble Supreme Court that the
qualification are to be seen as on the date of advertisement and not to the date of
interview. Hence there is no force in the submission of the petitioner on this point.
13. The learned counsel for the petitioner vehemently submitted that the entire
process of selection itself deserves to be quashed on the ground that the respondents
permitted production of the educational qualification certificates till the date of start of
interview but denied for production of driving licence. The argument is of two folds;
one is that the petitioner is also entitled for the same treatment and should have been
permitted to produce the driving licence before the date of start of interview and
secondly, in case this relief cannot be granted to the petitioner then in view of the
judgment of Hon'ble Supreme Court delivered in the case of Ashok Kumar Sharma
and others Vs. Chander Shekhar and another (1997) 4 SCC 18, fixing a subsequent
date for submitting the educational qualification certificate by the candidate from the
date of advertisement makes the entire process of selection illegal.
14. It is settled law that a person taking chance of selection in the process of
selection and failing in that, cannot be permitted to challenge the process of selection
702
itself, therefore, the contention of the learned counsel for the petitioner deserves to be
rejected only on the this ground. It is also further clear that Hon'ble the Apex Court in
the case of state of Bihar Vs. Kameshwar Prasad Singh reported in (2000) 9 SCC 94
observed that:
"When any authority is shown to have committed any illegality or irregularity, in favour o f any individual or group of individuals, others cannot claim the same illegality or irregularity on the ground of denial thereof to them".
15. Not only this, but the Hon'ble Apex Court further observed that "wrong
judgment passed in favour of one person does not entitle others to claim the same
benefits". When the petitioner is not entitled to challenge the process of selection, this
Court need not to decide whether the permission granted to the persons to submit their
educational qualification certificates till the date of interview is valid or not.
16. Therefore, there is no force in the writ petition and the same is hereby
dismissed.
***
703
S.B. Civil Writ Petition No.2255/99 D.D. 17.1.2003
Hon'ble Mr. Justice Prakash Tatia
Neeraj Kant and Others – Peitioners Vs. State of Rajasthan & Ors. Recruitment to the post of Legal Assistant Under the relevant Recruitment Rules, the minimum qualifying marks in viva-voce shall be 35% for candidates other than those belonging to SCs & STs for whom it shall be 25%. The validity of the said Rule is challenged on the ground that minimum marks in viva-voce test makes viva-voce a determining factor in the selection process. High Court has held the Rule valid after referring to several decisions of the Supreme Court. Cases referred:
1. (1980) 1 SLR 511 Manjula Devi T.N. vs. State of Karnataka & Others 2. (1981) 1 SCC 72 Ajay Hasia vs. Khalid Mujib 3. (1981) 4 SCC 159 Liladhar vs. State of Rajasthan 4. (1985) 4 SCC 417 Ashok Kumar Yadav vs. State of Haryana and Others 5. (1986) 1 SCC 671 Dr. Keshav Ram Pal vs. U.P. Higher Education Service Commission, Allahabad & Ors. 6. AIR 1988 SC 1451 Mehmood Alam Tariq and Ors. Vs. State of Rajasthan & Ors. JUDGMENT
Heard learned counsel for the parties (1) 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)
704
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 80km 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 department 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 a determining factor in the selection
705
process. In any case marks obtained 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) It is also submitted that, by adopting this mode of selection, the persons having
inferior knowledge of law are selected and appointed against the persons having better
knowledge of law who secured not only higher marks but even highest marks in
written examination. It is also stated that existing rule 24 of the Rajasthan
Administrative Service Rules, containing requirement of minimum marks in Viva-
Voce examination had been amended by the State government and requirement of
minimum qualifying marks in interview has been done away which shows that even
existing rules are being amended to remove requirement of minimum marks in viva-
voce exams. Therefore, condition that the candidate must secure minimum 35%
marks in the Viva-Voce test is totally arbitrary being irrelevant for the post of Legal
Assistant.
(4) It is also submitted that, even if it is found that condition of Viva-Voce test is
reasonable, even then condition of keeping minimum marks for Viva-Voce for the
post of Legal Assistant is discriminatory and decisive power to exclude most
meritorious candidates who secured highest marks in the written tests and select a
candidate who otherwise would not have been selected looking to his performance in
the written tests conducted to judge his knowledge on the subject for which selection
is to take place. According to the learned counsel for the petitioners, not only this is
discriminatory but the discrimination is based upon the irrelevant consideration
because the candidates having better knowledge on the subject are excluded on the
basis of securing lesser mark in the Viva-Voce which is conducted not to judge the
knowledge of the person on the subject but to test the personality which has no
relevance with the duties to be discharged by the selected candidates. It was also
submitted that fixing the minimum marks for Viva-Voce giving power to exclude
meritorious candidate itself is sufficient for declaration it being unreasonable, arbitrary
and illegal and ultra virus.
(5) Learned Counsel for the petitioner submitted that validity of rule providing
minimum 33% qualifying marks in personality and Viva-Voce examination in
Ragasthan Forest Service Rules, 1962 was examined by this Court while deciding
number of writ petitions by common judgment, which is reported in 1986 RLR 876
(Jogendra Singh V/S State of Raj. & Anr. and connected matters). This Court held
that no minimum qualifying marks should be prescribed for personality and Viva-
706
Voce because effect of said provision is that a candidate who secured highest marks in
written exam can be knocked out by awarding them less than minimum qualifying
marks in Viva-Voce exam. And candidate who obtained much lower marks in written
exam can be raised to topmost position in merit-list by awarding high marks in Viva-
Voce exam and thereby marks in Viva-Voce exam tend to become determining factor
in selection process. Learned counsel for the petitioner further submitted that though
the decision of this Court referred above stands reversed by the Hon’ble Supreme
Court in view of the Supreme Court’s decision rendered in the case of Mehmood
Alam Tariq and others Vs State of Rajasthan and others and other connected matters
(AIR 1988 SC 1451) but it was because that in those cases the posts under
consideration were of such nature where, with the passage of time, selected officers
were expected to man increasing responsible position.
(6) Learned Counsel for the petitioner vehemently submitted that Hon’ble
Supreme Court in a case of Mohd.Alam Tariq and others Vs. State of Raj. & Ors.
though upheld the condition of prescribing 33% as minimum qualifying marks for
viva voce but it was due to the nature of the post involved in the selection. The
Hon’ble Apex Court observed as under:
“ …..Prescription of minimum qualifying marks for the written examination or the Viva-Voce or for both, if a well recognized aspect of recruitment procedures and that a prescription of a maximum of 11.9% of the total marks for the Viva-Voce examination, with a condition that the candidate must get at least, 33% out of these marks for selection to the three key-services would not violate any constitutional principle or limitation; but on the contrary would, indeed, be a salutary and desirable prescription, particularly having regard to the nature of the services to which recruitment is envisaged. It was submitted that personnel recruited to the higher echelons of Administrative, Police and Forest services with the prospect, with the passage of time, of having to assume higher responsibilities of administration in those three vital departments of Government, should be tried men with dynamism and special attainments of personality. It was pointed out that though the pay scales of the Accounts Service and Insurance Service are the same as that of the Administrative Service; such a prescription is not attracted to the selection to these other services.’’
“…… There is nothing unreasonable arbitrary in the stipulation that officers to be selected for higher services and who are, with the passage of time, expected to man increasingly responsible positions in the core service such as the administrative Services and Police Service should be men endowed with personality traits conducive to the levels of performance expected in such services. There are features that, distinguish, for instance, Accounts Service from the Police Service- a distinction that drawn upon and is accentuated by the personal qualities of the officer. Academic excellence is one
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thing. Ability to deal with the public with tact and imagination is another. Both are necessary for an officer. The dose that is demanded may vary according to the nature of the service. Administrative and Police Services constitute the cutting edge of the administrative machinery and the requirement of higher traits of personality is not an unreasonable expectation.’’
(7) Advancing argument further, learned counsel for the petitioner 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 a
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.
(8) Learned counsel for the respondents submitted that the writ petition of the
petitioner’s deserves to be dismissed only on the ground that the petitioners have not
impleaded selected candidates in the writ petition. According to the learned counsel
for the respondents, in the arguments which were advanced by the learned counsel for
the petitioner’s have already been considered by the Hon Apex Court in Mehmood
Alam Tariq’s case and once it had been held by the Hon’ble Apex Court that even if it
gives a determining power to the selectors to select the candidates on the basis of the
marks secured in the interview, it cannot be held that the power is arbitrary or
unconstitutional, nothing survives for determination by this Court after the said
decision of the Apex Court.
(9) I considered the rival submissions. It appears that the thrust of the argument of
the learned counsel for the petitioner is more towards the challenge to the determining
and decisive power given to the interview board, by which a meritorious candidate can
be excluded only on the ground of securing less marks than the minimum prescribed
marks for interview. The same arguments were also advanced before this court in the
case; Jogendra Singh V/S State of Raj. & Anr. (reported in 1986 RLR 876) and five
connected writ petitions, wherein, the petitioners of those writ petitions challenged the
prescription of minimum marks of 33% for interview by framing rule in Raj. Forest
Service Rules 1962. It will be relevant to mention here that this Court while deciding
above a bunch of writ petitions considered various earlier judgments, which were
relied upon by the counsels in support of their rival contentions. Judgments which
were considered were Ajay Hasia Vs. Khalid Mujib: (1981) 1 SCC 722, Ashok Kumar
Yadav Vs. State of Haryana And Others: (1985) 4 SCC 417 and Lialdhar Vs. State of
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Rajasthan; (1981) 4 SCC 159, Dr. Keshav Ram Pal Vs U.P. Higher Education Service
Commission. Allahbad And Others: (1986) SCC 671, and Manjula Devi T.N Vs.
State of Karnataka and Others: (1980) 1 SLR 511. It will worthwhile to quote here the
relevant portion from the above judgment (Jogendra Singh V/S State of Raj. & Anr.):-
“ In cases where candidate’s personality is yet to develop and it is too early to identify the personal qualities for which greater importance may have to be attached in later life, greater weight has perforce to be given to performance in the written examination and the importance to be attached to the interview test in such a case would be minimal. In case of Services to which requirement is made from younger candidates whose personalities are on the threshold of development and who show signs of great promise, sound selection must combine academic ability with personality promise and therefore, some weight has to be given to the viva voce test. In cases where written test and viva voce examination are both provided, oral interview test should be resorted to as an additional or supplementary test and it cannot be made the determining factor for the selection process.” ( Emphasis supplied)
And thereafter, allowed the writ petition by holding as under:-
“The effect of the said provision in the proviso to sub the rule (1) of Rule 25 is that candidate who has secured the highest marks in the written examination, can be easily knocked out of the written examination, can be easily knocked out of the race by awarding him less than minimum qualifying marks in the personality and viva voce examination and a candidate who has obtained much lower marks in the written examination, can be raised to the top most position in the merit list by an inordinately high marking in the personality and viva voce examination and thereby the marks in the personality and viva voce examination tend to become the determining factor in the selection process.”
( Emphasis supplied)
and ultimately, this Court declared:-
“ For the reasons aforesaid, proviso to sub rule (1) of rule 25 of the State Service Rules in so far as it prescribes 33% as minimum marks for qualifying at the personality and viva voce examination suffers from the vice of arbitrariness and violative of provisions of Article 14 and 16 of the Constitution.”
(10) All the above grounds were considered in detail by the Hon’ble Apex Court in
the Mehmood Alam Tariq’s case (AIR 1988 SC 1451). In this case, Hon’ble Apex
Court considered not only above arguments but also considered other arguments like;
only in a very few service on the rules there is provision of requirement of securing
the minimum marks in the interview whereas it is not for other services (para 3 ), even
where there is same pay scale for a post, such requirement is not there ( para 4),
education of high percentage of marks for viva voce opens the door wide for
arbitrariness ( para 5), chances of favoritism (4), a suspicion of abuse of such power
709
due to falling of the standards of conduct in public life; in addition to the arguments; it
will be determining factor in the selection process (para 5 and other paras). Not only
the judgments delivered in earlier AIR 1971 SC 2303, AIR 1981 SC 1777, AIR 1981
SC 487, AIR 1987 SC 454 and AIR 1988 SC 162 were considered by Hon’ble Apex
Court but some work done by the authors on the subject were also considered by the
Supreme Court. Some useful portion is required to be quoted again, as even after
passage of so may years, are relevant today also, from “ The Civil Servants, An
inquiry into Bandritain’s Ruling Class: peter Kellner And Loard Crowther- Hunt at
page No. 103 which says:-
“ One of the main attractions of working for the Civil Services is the job security. Once they let you in, you have to do something spectacularly improper to get kicked out.’’
Hon’ble Supreme Court, touching the history of evolution of Civil Services observed
“ (it’s) study (is) in contrast is definitely as it is disquieting.’’
And quoted the author, saying as under:-
“ Prices rose, but there was a frantic buying Ministers made the most of their financial discovery. As it soon became too difficult to invent new offices the old ones were doubled or trebled that is, divided up among several holders, who did what the seventeenth and eighteenth centuries were too fond of doing, employed a humble subordinate to carry them out…….” “ Offices were sought, then, with a frenzied energy, and they were created with cynicism Desmarets. One of Louis XIV’s Comptroller Generals, had proposed to the ding the establishment of some quite futile offices, and letter asked who would ever consent to buy such situation? ‘ Your Majesty’ replied Desmarets, is forgetting one of the most splendid of the prerogatives of the Kings of France that when the ding creates a job, God immediately creates an idiot to buy it.” ( Theory and Practice of Modern Government Horman Finer- 751 )
(11) After taking note of the history of the government employment; job security
to the employees. One of the consequence of the such job security by which the
employer is deprived of his right to remove the employee on his own whims; the
favoritism and corruption in giving appointments and many other aspects, Hon’ble
Apex Court held that much desired transformation from the patronage to open
competition is later development, to which now, all civilized governments profess
commitment. However, though there is agreement in principle that there should be a
search for the best talent particularly in relation to higher post, however, as to methods
of assessment of efficiency, promise and aptitude, ideas and policies widely vary,
though it has now come to be accepted that selection is an informed professional
exercise which is best left to agencies independent of the services to which recruitment
is made. Hon’ble Apex Court held that “ The ‘interview’ is now an accepted aid to
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the selection and is designed to give the selectors some evidence of the personality and
character of the candidates.’’ Not only this but the Apex Court considered the
problems which may come, if more weight is given to the interview in the matter of
selection particularly, where the selection is based solely on interview and gives a
decisive power to the selectors. The argument noted was- “ The arguments in the case
on the illegality of the prescription of minimum qualifying marks in the viva-voce
turned more on the undesirability of such a condition in the background of the
increasing public suspicion of abuse of such situations by the repositories of the
power. The standards of conduct in public life, over the years, have, unfortunately,
not helped to lessen these suspicions. Tests of this kind owing to the repeated
onslaughts on the sensibilities of the public in the past, tend themselves too readily to
the speculation that on such occasions considerations other than those that are relevant
prevailed.” Ultimately held:-
“On a careful consideration of the matter, we are persuaded to the view that the prescription of minimum qualifying marks of the 60 (33%) out of the maximum marks of 180 set apart for the viva-voce examination does not, by itself, incurred any constitutional infirmity. The principles laid down in the cases of Ajay Hasia (AIR 1981 SC 487), Lila Dhar (AIR 1981 SC 1777), Ashok Kumar Yadav (AIR 1987 SC 454), do not militate against or render impermissible such a prescription.”
The Supreme Court ultimately set aside the judgment of the division bench of
this Court by which the division bench of this Court struck down the Rule fixing
minimum qualifying marks for and viva-voce examination and restored the position of
providing requirement of minimum marks in interview for selection.
(12) Subsequently, in the case of All India State Bank Officers Federation Vs.
Union of India (1997) 9 SCC 151}, the Supreme Court again considered above
referred cases as well as some other cases and applied the same test to judge the
legality of the action of the respondents in framing promotional policy relating to the
promotion from the post of Senior Management Grade Scale V to Top Executive
Grade Steel of VI. The Supreme Court, again applying the same principle as laid
down in the aforesaid decisions, held that interview marks represent only 25 percent of
the aggregate, i.e., 200 marks and requirement of 60 percent of above 50 marks to
become eligible, is not the case of giving exaggerated weight to the interview in the
process of selection.
(13) In the light of above principles as laid down by the Supreme Court it is clear
that prescription of minimum marks for interview is permissible even if it may become
711
a determining factor. Here in present case, total marks are 170 (150 for written test
and 20 marks for interview). The candidate is required to secure 7 marks out of 20
kept for interview which is only 4.1% of the aggregate marks, which also cannot be
said to be giving extra weight to the marks for interview.
Therefore, in view of the above decisions of the Supreme Court, challenge to
the rule 23 of the Rules of 1981, only on the ground that it gives decisive power to the
selectors to knockout the candidates who secured more marks or who secured highest
marks of its undesirability, are concerned, neither survive nor can be re-agitated.
(14) Still, the question which has been raised by the learned counsel for the
petitioner’s survives is, that, whether the nature of service for which selection took
place, are of such nature which involves administrative function or the appointee will
be required to deal with public and personality of a candidate will have nay effect in
discharge of duties? The learned Counsel for the petitioner pointed out the distinction
between the facts of the cases that had already decided by the Supreme Court and the
present one. According to the learned counsel for the petitioners, the decisions of the
Supreme Court, referred above also made it clear that requirement of interview and
fixing of minimum marks for interview depend upon the nature of the duties required
to be discharged. The decisions of the Supreme Court, nowhere lay down,
prescription of minimum marks in the personality test by Viva-Voce as principle of
universal application irrespective of the nature of the job for which selection is to take
place. Rather the decisions suggest, that in case where the selected candidates, while
working on the post will not have to deal with public or will not have to discharge
administrative functions then the requirement of personality test by interview will
become irrelevant.
(15) Argument of the learned counsel for the petitioner is quite attractive and
deserves consideration because of the reason that the Supreme Court in above referred
cases considered the matter of the appointment of higher posts or matters relating to
the promotional posts and the Supreme Court held that requirement of the interview
and prescription of minimum marks in the process of selection depends upon the
nature of the post for which selection is to take place. In this petition, the post for
which selections are under challenge is post of Legal Assistant. According to the
learned counsel for the petitioner’s this is the lowest post in the cadre and initially, the
appointees will have do the work in the office, the appointees are not supposed to
discharge any administrative function nor they have to take any decision. The
appointees will not even have much dealing with the public; they are to give opinion
712
in files, for which academic qualifications are important, which admittedly petitioners
possessed as the petitioners secured sufficiently good marks in their written test.
Before any work of responsibility will be given to the petitioner, they will acquire
sufficient experience by working in the office, therefore, requirement of personality
test at this stage of initial appointment is not of any use nor can it be said to be a
reasonable requirement for selection. It was also argued, that the Supreme Court also
held that selections should be broad-based so that best talented person can be selected.
It is clear from the Rules of 1981 that the post of Legal Assistant is required to be
filled up 100% by direct recruitment. Once a person is appointed as the Legal
Assistant, he may be further promoted to the post of Head Legal Assistant, which is
the post in the category of State Service, thereafter to the post of Assistant Legal
Draftsman/Assistant Legal Remembrance and thereafter, on the post of Deputy Legal
Remembrance and ultimately to the post of Joint Legal Remembrance. All these posts
are to be filled up 100% by promotion on acquiring sufficient experience as provided
under the rules.
(16) In the light of the law laid down by Hon’ble Apex Court and after careful
consideration of the arguments of the learned counsel for the petitioners, it is clear that
personality test by Viva-Voce is well-known recognized, permissible method for
selection of the candidates for appointment. It is different that, how much weight can
be given to the personality test in present process of selection for the post of Legal
Assistant? It comes from the facts and reasons given in the judgments delivered by
the Hon’ble Supreme Court that, posts involved in those cases had some element of
dealing with public. It is also true that one of the reasons for upholding the validity of
prescription of minimum marks for personality test was the nature of the duties
involved. After careful reading of all the reasons given in the various judgments of
the Supreme Court, I am of the view that importance of personality test was accepted
as a new concept in addition to the selection process despite the fact that there is
chances of abuse of this process. The Supreme Court upheld the prescription of
requirement of personality test as well as the fixing of the minimum marks in
interview and held that, selection is an informed professional exercise which is best
left to agencies independent of the services to which recruitment is made. So far as
the apprehension of abuse of power is concerned, the government cannot be conducted
on the principles of distrust and if the selectors had acted malafidely or with oblique
motive, there are administrative law remedies to secure relief against such abuse of
powers. These observations of the Hon’ble Apex Court in the judgment of Mohd.
Alab Tariq give complete answer to the apprehension of the petitioners that by
adopting the method of viva-voce test, requiring minimum marks in the viva-voce test,
713
will permit the selectors to exclude the meritorious candidates and select the candidate
of lesser merit. The distribution of written test and for interview may depend upon
the duties which are to be discharged by the appointees, but it cannot be concluded
that requirement of interview and fixing a minimum marks for interview are
undesirable requirement. A careful reading of the judgment of the Supreme Court
also reveals that, the nature of post was only one of the grounds that, the nature of post
was only one of the grounds which was taken into consideration by the Supreme Court
for upholding the validity of the requirement of the prescription of the minimum
marks, and not the only ground to uphold validity which is clear from the observations
of the Supreme Court : If any minimum marks, either in written test or in viva-voce
test are fixed to determine the suitability of a candidate, the same has to be respected,
and it was further observed that :- even if a candidate had obtained higher aggregate
marks in written and viva-voce test but if he had failed to secure the minimum marks
in the viva-voce test, his name could not be included in the list……”. The Hob’ble
Apex Court nowhere laid down it as rule of universal application that the prescription
of the minimum marks for interview is permissible only for those posts where the
employees are required to deal with the public or are required to discharge some
administrative function or are required to do the work of more responsibility. In all
the judgments, Hon’ble Apex Court recognized the prescription of the minimum
marks for interview. While examining, whether the minimum marks fixed for
interview are reasonable or not, the nature of the post and the duties attached to the
post were considered by the Supreme Court and it has been held that looking to the
nature and the duties of the post, the marks fixed in those cases, cannot be said to be
excessive. Therefore, there appears to be no force in the contention of the learned
counsel for the petitioners, that prescription of minimum marks is permissible only for
the above said post and cannot be applied to the posts under consideration in this writ
petition. In addition to above, submission of the learned counsel for the petitioners
appears to be based on narrow interpretation to the phrase “dealing with public”.
“Dealing with the public” by a person holding the public post, understood in common
parlance with reference to dealing with general public only and not understood for the
government employee’s dealings with the other government employees in their
official capacity, for official work. However, close scrutiny will show that what is in
common parlance is not the only way of “dealing with public” of a government
servant. A government employee is required to attend the office where he is to deal
with not only his colleagues but also with his juniors, his officers, sometimes may be
up to the highest officer in his own office. There comes very many occasions when
the government employee is required to deal with employees of different government
departments. A government servant working in office can discharge his duties
714
efficiently only when he can deal with number of other persons working in the office
or coming to the office may for official work. Therefore, normally a government
employee, when works in the government office, it is to be presumed that he is to deal
with public may it be general public or official persons. A Legal Assistant cannot be
supposed to work in isolation and it can be said that he need not to deal with public
(general public or officials persons). An argument may be advanced that the same
principle can be applied in the matter of appointment to the every post of the
government service, may it be of clerical nature, whereas, according to the learned
counsel for the petitioner, in fact not only there is no requirement of personality test
for appointment to the large number of posts in government service but where work of
more responsibility is involved and wherever there was similar provision of
personality test in the rules, the rules have been amended to remove the requirement of
interview. According to the learned counsel for the petitioner, this suggests that the
State Government also felt that there is no need of requirement also felt that there is no
need of requirement of personal interview for initial selection for the various post.
Yes, same principle can be applied in the case of the appointment to many posts but
still posts are filled without subjecting the candidate to pass the personality test. It is
also true that requirement of personality test is not there in many rules. But when it
has been held by the Hon’ble Supreme Court in the judgments referred above that
prescription of minimum marks in viva-voce test, if are fixed to determine the
suitability of a candidate, the same has to be respected then fixing this minimum
marks for the post which have not been referred to in the judgments or the posts where
the person holding the post need not to come in contact with public at large or need to
discharge the public administrative functions, if applied, then how it can be said to be
a condition unreasonable. Putting a condition of higher standard, how it can be said to
be a condition violative to any provision of any law or is violative to touch stone of
reasonableness.
(17) Once it has been held that wherever requirement of passing personality test is
there, it is to be respected then absence of a requirement of personality test in other
rules cannot be a ground to challenge the requirement of personality test. In other
words, better process of selection cannot be challenged on the ground that same
standards of selections are not made applicable to the selection for other post. At the
cost of repetition, it can be said that personality test has its own importance. Hon’ble
Apex Court in Lila Dhar’s case {(1981) 1 SCC 722) considered the matter of those
services where recruitment is made from younger candidates and held:-
715
“ In the case of such services, where sound selection must combine at the academic ability with personality promise, some weight has to be given, though not much too great a weight, to the interview tests. There cannot be any rule of thumb regarding the precise weight to be given. It must very from service to service according to the requirements of the service, the minimum qualifications prescribed, the age group from which the selection is to be made, the body to which the task of holding the have interview is proposed to be entrusted and a host of other factors. It is a matter for the determination by experts. It is a matter for research. It is not for courts to pronounce upon it unless exaggerated weight has been given with proven or obvious oblique motives. The Kothari Committee also suggested that in view of the obvious importance of the subject, it may be examined in detail by the Research Unit of the Union Public Service Commission.”
(18) Supreme Court, in the case of all India State Bank Officers Federation’s case
(1997) 9 SCC 151 also considered the judgments delivered in case of State of U.P. Vs.
Rafiquddin (1987) Supp. SCC 401, and Mehmood Alam Tariq V. State of Rajasthan
(1988) 3 SCC 241, wherein prescription of 35% & 33% qualifying minimum marks
for viva-voce were upheld and applying the same principle held that 25% of the
aggregate marks for viva voce test cannot be treated as giving exaggerated weight to
the viva-voce test.
(19) I do not find any force in the submissions of the learned counsel for the
petitioner that the post of the Legal Assistant is of not of such nature where any weight
can be given to the personality test. Work of Legal Assistant cannot said to be, work
of merely of clerical nature nor it can be equated with the work of any U.D.C even
when there may be some similarities in the service conditions for the post of Legal
Assistant and U.D.C. Giving advise on the point of law even by Legal Assistant
carries its weight and has different value than the putting note by any U.D.C. or any
clerical staff or the employee of equivalent rank. Very many occasions comes for the
government servants even at the initial stage of their appointment when they are
assigned some additional work, which may be of importance. Which, they are
required to do. Effect of the personality over his actual working can be judged only by
his personality test by Viva-Voce. Now a days, when there is a tough competition for
each and every post and the large number of candidates are coming forward for the
post of even of lowest cadre then the administration is required to fix the criteria for
selection, which improves the function of the institution itself.
(20) In the present case, aggregate marks are 170 out of which 150 marks are kept
for written examination and 20 marks for interview. Out of these 20 marks, one is to
secure 7 marks to become eligible for selection. Therefore, it comes only 4.1% of
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marks of total 170 aggregate marks. In the light of the decision of the Hon’ble
Supreme Court referred above and looking to the nature of the post for which selection
have taken place, it cannot be said that exaggeration had been given to the viva voce
test.
(21) So far as the apprehension of abuse of power is concerned, the Hon'ble Apex
Court observed that the affairs of the government cannot be conducted on the
principles of distrust and if the selectors had acted malafidely or with oblique motive,
there are administrative law remedies to secure relief against such abuse of powers.
These observations of the Hon’ble Apex Court in the judgment of Mohd.Alab Tariq
give complete answer to the apprehension of the petitioners that by adopting the
method of viva-voce test, requiring minimum marks in the viva-voce test, will permit
the selectors to exclude the meritorious candidates and select the candidate of lesser
merit. It is not the case of the petitioners that the selectors abused process of
selection.
(22) Learned counsel for the petitioners further submitted that, in the Rule 23, no
criteria or guidelines have been given for conducting the interview where as Rule 24
of the RAS Rules provides that in interviewing candidates, marks will also be awarded
in respect of character, personality, address and physique. In such a case candidate
can understand that what he has to face in interview. But in the cases of interview for
the post in dispute the candidates are not aware about the subject over which they will
have to face the interview. Above submissions of the learned counsel for the
petitioners is also devoid of any force. First of all, because of the reason that the
petitioners themselves have appeared before the Interview Board without raising any
objection and took the chance of failure and success and when failed in getting
success, now want to challenge the process of selection, which is not permissible.
Secondly, the petitioners have not disclosed how the interviews of the petitioners were
taken. Rather it appears that the petitioners have no objections so far as their own
interview is concerned as they have not even alleged that they had to face questions
which were not relevant or caused any `prejudice to them. When, on facts, the
petitioners could not make out any case of abuse of power by the interview board or
that the petitioners in fact faced such questions which no candidate expected, how the
petitioners can challenge the selections and award of marks in interview. So far as
personality test is concerned, how it is to be judged, cannot be prescribed by insertion
of a few words only in the Rules, which is clear from the example given by the
petitioners themselves. The petitioners tried to submit that since there is mention in
Rule 24 of the RAS Rules, that the marks will also be awarded in respect of character,
717
personality, address and physique and which is not described in the Rule 23 which is
under challenge; therefore, in case under RAS Rules, the candidate can know, what
test he is to face. This argument also has no force as the subjects, character,
personality, address and physique of each individual is sufficiently wide and therefore
to judge the candidate on any of the above matters, one will have to rely upon the
ability of the persons who are to take interview of the candidates.
(23) In view of the about discussions, I do not find any force in the writ petition,
hence the writ petition of petitioners is dismissed. No order as to the cost.
***
718
S.B. Civil Writ petition No. 4914/2002 D.D. 19.2.2003
Hon'ble Mr. Justice Prakash Tatia
Mahendra Choudhary & Ors. – Petitioners Versus State and Others – Respondents
Recruitment to the post of Transport Sub Inspector
One of the conditions of notification is that qualification certificates in original should be produced on the date of interview. The question is whether candidates who have passed in the examination and who undisputedly possess the prescribed qualification if fail to produce the qualification certificates on the date of interview, whether their candidature is liable to be cancelled? - NO Held – View taken above finds support if it is examined from another angle. The term "shall be rejected" is a term in terrorem against the candidates so that the candidates strictly comply with condition of submitting documents in time and if the selectors decide to cancel candidature of the defaulting candidates, the candidates may have notice of consequence of their default. In the light of above reasoning, conclusion is that the words "shall be rejected" used indicate permissive power of the selectors, either to reject the candidature of the defaulting candidate or may grant further time to all defaulting candidates to submit the documents. These permissive powers of the selectors do not give corresponding right to the defaulting candidates to compel the selectors to extend the time fixed for submitting the certificates. Case referred:
1. AIR 1992 Raj. 20 Miss Neeta Midha Vs. Gramothan Teachers Training School
Sangaria & Ors.
ORDER
1. Heard learned counsel for the parties.
2. The petitioners submitted their candidature for appointment to the post of
Transport Sub-Inspector in pursuance of advertisement dated 15.10.01 issued by
RPSC, Rajasthan Public Service Commission, (for short as "RPSC"). Petitioners
submitted that all the petitioners are eligible candidates and they were declared
successful in written examination. Petitioners were also called for interview by the
RPSC. The petitioners appeared in the said interview conducted by RPSC. As
required by Rule 17(2) of Rajasthan Transport Subordinate Service Rules, 1963
(hereinafter referred to as "Rules of 1963"), and required by interview letter, the
candidates were required to produce their original certificates at the time of interview
failing which the candidate could not have been permitted to face the interview and his
candidature is required to be rejected by the RPSC. The RPSC instead of rejecting the
candidature of candidates, who did not produce the original documents at the time of
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the interview, included the names of those defaulting candidates in the select list and
declared those candidates provisionally selected for the said post. According to
learned counsel for the petitioners, in the advertisement issued on 15.10.01 itself, the
eligibility and other requirements have been given. In sub-clause (4) of condition no.
13, it is mentioned that all the candidates should furnish the requisite certificates of
eligibility with respect to qualifications before the interview. Sub-clause (2) of R.17
also provides that candidates are required to submit the applications and that should be
complete in all respects and should be in accordance with instructions issued by
RPSC. It is also provided n sub-clause (2) of R.17 the candidate is required to ensure
himself/herself that he/she fulfills all the conditions regarding age, educational
qualifications, experience, number of chance, if any etc., as provided in the rules and if
the candidate is allowed to take examination it shall not entitle the candidate to take
presumption of eligibility. It is provided that Commission shall scrutinize the
applications of such candidates only who qualify inn the written examination and shall
call only the eligible candidates to viva-voce test, if any. Sub-clause (3) of R.17 of the
said Rules provides that decision of the Commission in respect of admission of a
candidate to an examination, eligibility and consequent admission to viva-voce, if any,
shall be final. Therefore, according to learned counsel for the petitioners, the
Commission had left with no option but to reject the candidature of those candidates
who failed to produce the documents on or before the date of interview.
3. It is also submitted by learned counsel for the petitioners that RPSC
unequivocally again in the interview call letters issued to the candidates very clearly
mentioned that, in case candidates will not come with original certificates, their
candidature shall be rejected and will not be permitted to appear for viva-voce test.
Emphasis was further given in the interview call letter itself by giving note in block,
that candidates should com with all the certificates otherwise they will be declared
ineligible, therefore, according to learned counsel for the petitioners, in these
circumstances, action of RPSC permitting them to furnish the original certificates
subsequent to the date of interview is illegal. It is also submitted that RPSC had no
jurisdiction to declare the result as provisional result or declare a candidate selected
provisionally. If such candidature of these candidates is rejected, the petitioners who
are ranking below those candidates will get selection on the post. According to
learned counsel for the petitioners, as per rule 17(2) of the rules of 1963, the candidate
is supposed to not only posses the eligibility for the post on the last date fixed for
submitting the application but is also supposed to have relevant certificate in his
possession, failing which he cannot be treated as a eligible candidate. Therefore, the
petitioners prayed that the result declared by the RPSC by including the names of
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those candidates who did not produced original documents at the time of interview be
quashed and RPSC be directed to declare result of the candidates who produced the
original documents at the time of interview and if petitioners names find place in
select list, their names be recommended for appointment to the post.
4. Learned counsel for the respondent RPSC did not dispute, rather admitted,
that the candidate must fulfill the eligibility on the last fixed for submitting application
form but seriously contested the contention of the learned counsel for the petitioner
regarding effect of not submitting certificates by the candidate at the time of the
interview and submitted that possession of relevant certificate at the time of
submitting the application form or at the time of interview has noting to do with
eligibility of the candidate. Non production of those certificates is only a default of
the candidate and on the basis this default of the candidate, the RPSC has a right in
itself to cancel candidature of the candidate. The RPSC has not considered any
candidate who did not possess the requisite qualification on the last date of submission
of application. The RPSC, as per rule 2, is required to obtain the applications from the
candidates and in case incomplete application is received, it can be rejected at initial
stage. Even the RPSC has been given power to scrutinize the application of the
candidates later on and can call only eligible candidates to viva-voce test. The
requirement of producing certificates in original and copies whereof itself is not the
eligibility of candidate but they are the proof of eligibility of candidate. If it is
mentioned in the interview letter that candidature of candidate shall be rejected if he
fails to produce the original certificate at the time of interview, then this is nothing but
permissive power of RPSC to cancel the candidature of defaulting candidate and not
the mandatory condition against the RPSC. It is also submitted that as provided in
sub-clause (kh) of condition no.1 of the interview letter, it is clear that requirement of
production of certificate by the candidates may entail the candidate for rejection of
candidature at the discretion of Commission. But there is no bar against the RPSC in
permitting candidates to produce original certificates later on. Further opportunity to
produce original certificates was given to all those candidates who could not produce
the original certificate at the time of interview. The RPSC thereby only gave chance
to produce certificate to the candidates who are more meritorious than the petitioners
and this is not in violation of any rule rather by this permission only meritorious
candidates will not be selected. It is also submitted by learned counsel for the
respondents that writ petition of the petitioners deserves to be dismissed as the
petitioners have not impleaded the candidates who were selected in the interview and
were placed in provisional select list.
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5. I have considered the rival submission. So far as the contention of the
learned counsel for the petitioners that RPSC under the Rule of 1963 is required to
cancel the candidature of the candidate who failed to produce the original certificates
at the time of interview is concerned, it is devoid of any force as there is no rule which
mandates RPSC to cancel the candidature of defaulting candidates leaving no
discretion with the RPSC to take decision on default of candidate. There is no rule
which prohibits RPSC from giving further time for production of certificates of
eligibility. In fact, Sub Rule (ii) of Rule 4 read with Sub Clause (d) of Sub Rule (1) of
Rule 4 makes the distinction clear between "Qualifications" and "establishing
candidate's eligibility". So far as qualifications of the candidates who are declared
provisionally pass, there is no dispute even by the learned counsel for the petitioners.
As per Rule 4 (i) (d), RPSC is required to give notice to the candidates with respect of
what steps are required to be taken by the candidates to establish their eligibility. Sub
Rule (ii) of Rules of 1963 empowers RPSC to give further instructions, in addition to
the instructions given in the Sub-Rule (i), including with respect to instruction for
steps to be taken by the candidates to establish their eligibility. Therefore, the
submission of the learned counsel for the petitioners is just contrary to the learned
counsel for the petitioners is just contrary to the Sub Rule (ii) of Rule 4 of the Rules of
1963.
6. It appears that petitioners are under an impression that the requirement of
production of original certificates at the time of interview is one of the conditions of
eligibility of a candidate for selection to the post of Transport Sub-Inspector. Under
this impression, learned counsel for the petitioners relied upon the judgment of the
Supreme Court delivered in the cases of Bhupindra Pal Singh and ors. Vs. State of
Punjab and Ors. Reported in 2000(5) SCC, 262 and the Judgment delivered in the case
of Ashok kumar Sharma and Anr. Vs. Chandra Shekhar and ors. Reported in 1993
Supp. (2) SCC, 611 and the judgment and order passed in review petition filed in the
case of Ashok Kumar Sharma's case by the Hon'ble Supreme Court, reported in
1997(4) SCC, 18 and the judgment of this Court (by me) delivered in the case of
SBCW Pet. No. 2804/02(Man Singh Vs. State) decided on 03.12.02 wherein it has
been held that eligibility of candidate has to be determined as on the last date fixed for
receipt of application for selection to the post. So far as the legal position that
candidate must possess the requisite qualification and eligibility on the last date fixed
for submitting the application form, law is well settled and the learned counsel for the
respondents is not disputing it. It is submitted by learned counsel for respondent that
the respondents has not considered and declared pass any of the candidates who did
not possess the requisite eligibility on the said last date. It is also clear from the
722
submission of learned counsel for petitioners that even it is not the case of petitioners
that any of the candidates, who was not possessing the requisite qualification on the
last date fixed for submitting application has been declared passed by the respondent.
Therefore, the Judgments cited by learned counsel for the petitioner have no
application to the facts of this case.
7. Next question is whether time fixed for submitting documents in this case
completely debars selector from giving time to the candidates from submitting the
required documents after the date fixed for the interview? Or, it is permissive power
of the selector which empowers the selectors to cancel the candidature of the
defaulting candidate? In my opinion, object of fixing time limit for submitting the
relevant documents at the time of interview is not for securing rejection of the
candidature of the eligible candidate on technical ground. The eligibility criteria are
the paramount consideration for selection of candidates, which is required to be
fulfilled by the candidates. When merit of candidates is pitted against the
technicalities of law by which lesser meritorious candidates want to exclude the
meritorious candidates, then merit is required to be preferred against the technicalities
of law so that if meritorious candidate himself has not incurred disqualification or
created a situation, by which he becomes disentitled for said selection, then such
meritorious candidate must get opportunity of appointment. The mandatory
requirement in the process of selection is the eligibility of the candidate which cannot
be compromised. The petitioners are not disputing the eligibility of the provisionally
selected candidates but submit that the candidates who did not submit their original
certificates at the time of the interview became ineligible. For selection of a
meritorious candidate from amongst eligible candidates, the eligible candidates are
required to pass through process of selection. Each selection processes has its known
procedure which ensures a fair treatment to all eligible candidates. In this process of
selection candidates are required to discharge their obligations, in which one of the
obligation is to do the things in time frame program so that process of selection may
be completed in time. Therefore, to complete the selection process in time, a time
bound program is given by the selectors by fixing date, by which the candidate may
submit application form, deposit requisite fees, may submit documents etc. Therefore,
mere mentioning at various places, that in the case of non-production of original
certificates at the time of the interview, the candidature of candidate shall be rejected,
appears to be a "permissive" power given to selectors to cancel the candidature of the
defaulting candidate and not a mandate against the selector that the selector shall have
no option to extend the time for submitting the documents for the candidates and the
selector is bound to reject the candidature of the defaulting candidates. Learned
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counsel for the respondent rightly relied upon the judgment of Hon'ble Apex Court
delivered in the case of State of M.P. Vs. Azad Bharat Finance Co. and anr. reported
in AIR 19676 SC 276, wherein, while interpreting the statutory provisions containing
the word "shall", the Supreme Court observed that 'shall' does not always mean that
the provision is obligatory and not permissive. While interpreting the words 'liable to
confiscation' with prefix "shall" as available in Sec.11 of the Opium Act, Hon'ble
Apex Court held that this is permissive power and authority is permitted to take action
and not obligatory for the authority to necessarily take the action.
8. View taken above finds support if it is examined from another angle. The
term "shall be rejected" is a term in terrorem against the candidates so that the
candidates strictly comply with condition of submitting documents in time and if the
selectors decide to cancel candidature of the defaulting candidates, the candidates may
have notice of consequence of their default. In the light of above reasoning,
conclusion is that the words "shall be rejected" used indicate permissive power of the
selectors, either to reject the candidature of the defaulting candidate or may grant
further time to all defaulting candidates to submit the documents. These permissive
power of the selectors do not give corresponding right to the defaulting candidates to
compel the selectors to extend the time fixed for submitting the certificates.
9. The Division Bench in the judgment delivered in the case of Miss Neeta
Midha Vs. Gramothan Teachers Training School, Sangaria and Ors. reported in AIR
1992 Raj. 20 held that petitioner-appellant, after passing her Higher Secondary
Examination, applied for taking up Basic Teachers Training course. She alleged that
she filled up her form in time and submitted it before 13.08.1990, which was the last
date for that purpose, but she submitted her Bona fide Resident certificate on 07.09.90
i.e., after the last date for declaration of result on the basis of merit, which was
31.08.90. She was not given admission. The Division Bench held that mistake had
been committed by the petitioner. In spite of the specific instructions that her bona fide
certificate should be submitted with the Form, she failed to submit it before even the
finalization of the result. On these facts, the Division Bench held that petitioner is not
entitled for any relief. That was the case where the candidate who himself/herself
committed mistake of not producing the relevant documents at the relevant time and
still wanted to challenge the action of respondents by which his/her candidature was
rejected whereas the facts of this case are just reverse. Here, in present case, the
selector has decided to permit the candidates to produce the certificates afterwards and
defaulting candidates are not seeking direction against the respondents that the RPSC
be directed to extend the time limit fixed for filing the certificates. Therefore, the
724
above judgment also does not help the petitioners. It is further relevant to mention
here that incase it is held that in view of the condition mentioned in interview call
letter, the time fixed for submitting documents cannot be extended then it will only
give chance to less meritorious candidate in place of meritorious candidates, which
will be unjust and will also be against larger public interest.
10. Next contention of the learned counsel for the petitioners is that provisional
declaration of result of the candidates is illegal on the ground that there is no provision
in the Rules under which result can be declared provisionally. The contention of the
petitioners deserves to be rejected only on the ground that no prejudice has been
caused to the petitioners merely because of provisional declaration of the result by the
RPSC. Further more, Rule 17(2) of the Rules of 1963 specifically provides for grant
of provisional permission to the candidates to appear in the examination. The
interview letter itself, on the basis of which even the petitioners faced the interview,
very clearly provides that this is a provisional interview. Holding of provisional
interview is also not provided in the Rules but petitioners accepted call letters for
provisional interview and appeared in interview without any objection because it suits
the petitioners. Learned counsel for the petitioners could not satisfy this court that if
the grant of further time to the defaulting candidates to produce the relevant
certificates is not found wrong then how the petitioners have locus standi to challenge
the provisional declaration of the result by the respondent No. 2 RPSC? Learned
counsel for the respondents was very much right when he says that rule cannot cover
each and every contingency and there may be certain blank spaces, which could be
filled up by selectors and until & unless the action itself is so unreasonable and affects
the merit of selection and permits selection of ineligibles candidates or give arbitrary
favour to someone, it cannot be challenged. Thus, giving one more chance to the all
defaulting candidates to produce original certificate in this case, by no stretch of
imagination, ca be condemned.
11. Therefore, in view of above, present writ petition has no force and is
hereby dismissed.
***
725
SIKKIM PUBLIC SERVICE COMMISSION
726
SIKKIM HIGH COURT Writ Petition No.3 of 1996
D.D. 21.5.1996
The Hon'ble Mr. Justice Malay Sengupta, Judge Bimal Rai & Others - Petitioner –vs- Sikkim P.S.C. - Respondent
All appointments made after 1.7.95 should be brought under the reservation scheme
Held - Even though posts were advertised as general category vacancies before
adopting reservation policy as the recruitment process was held after adopting the reservation policy roster policy has to be applied.
In selection process to recruitment to 5 posts of A.C.F. by direct recruitment
under Sikkim Forests Service (Recruitment) Rules 1976 – 2 posts in General category were advertised on 20.4.96 – Reservation policy of Central Govt. was adopted on 1.7.95 – 3 more posts were advertised as per the reservation policy on 28.9.95 – For the purpose of selection process PSC clubbed the candidates of both advertisements but treated 2 vacancies advertised under 1st notification as unreserved category and reservation policy was applied only to 3 posts advertised under 2nd notification – while up holding the selection process the High Court has held all the 5 posts should be treated under reservation policy and roster should be applied in view of the decision of the Supreme Court in R.K.Savharwal's case (1995) 2 SCC 745. 1. AIR 1966 Mysore 36 (Kenchiah –vs- State L.R. Committee) 2. 1980 A.I. Service Law Journal 153 (Dr.Dhrubashkarn –vs- Osmania University) 3. AIR 1986 Supreme Court 1043 (Om Prakash –vs- Akhilesh Kumar) 4. 1989(1) A.I. Service Law Journal (Dr.Gorakhnath Misra –vs- Goa University) 5. AIR 1990 Supreme Court 2063 (Triloknath Singh –vs- Bhagwandi Misra) 6. AIR 1992 Madras 359 (Esthar Kavitha –vs- Sate of Tamilnadu) 7. (1995) 2 S.C.C. 745 (R.K.Savharwal's case) 8. (1995) 3 S.C.C. 486 (Madan Lal's case) JUDGMENT
This case arises out of an application filed under Article 226 of the
Constitution of India by the five petitioners against the State Public Service
Commission and its officials and also members of the Selection Committee and five
other persons who are alleged to have been selected and recommended to the
Government by the State Public Service Commission for appointment in Government
post.
2. The fact of the case, in short, is that the Government of Sikkim decided to fill
up nine posts of Assistant Conservator of Forests. The decision was to fill up four of
such posts by promotion from officers working in the feeder posts and five by direct
recruitments. An advertisement to that effect was published on 24.6.1995 wherein two
727
vacancies in the general category were indicated. Sometime later, on 28.9.1995,
another advertisement came out for the same posts and this time the number of
vacancies were indicated as three. A break up for these three posts were also noted
and it was one post from Scheduled Caste category, one post for Other Backward
Classes category and one post for unreserved category. It was further indicated in the
said advertisement dated 28.9.1995 that those candidates who already applied in
response to the advertisement dated 24.6.1995, if belonging to Scheduled Caste or
Other Backward Classes category, might apply for the reserved posts after obtaining
necessary caste certificate from the concerned authorities. The two above noted
advertisements were respectively categorized as old system, meaning thereby without
any reservation, and new system which includes provision for reservation.
3. In between the two advertisements the policy of the Central Government with
regard to reservation of posts was adopted by the Government of Sikkim and by a
Notification dated 1.7.1995 the percentage of reservation for different categories was
indicated. By another Notification dated 5.7.1995 it was declared that all
appointments in the vacancies to the direct recruitment posts in the Government and
Public Sector Undertaking as on 1.7.1995 would stand frozen. A further notification
came out on 26.8.1995 indicating the model 100 point roster which was to take effect
from 1.7.1995.
4. The recruitment in the Forests Service of the State of Sikkim is to be governed
under Sikkim Forests Service (Recruitment) Rules, 1976. In conformity with the
provision of the aforesaid Rule, a separate rule for competitive examination for direct
recruitment together with fixation of syllabus, etc. was notified on 22.6.1995. The
Public Service Commission received 101 applications in total in response to the two
advertisements. 84 and 17 were the figures respectively. On scrutiny of the
applications, 85 (75 of first and 10 of second advertisement) candidates were found to
be eligible. These candidates were to appear in an endurance test for preliminary
screening and examination of their suitability test. A total number of 60 candidates
were present for endurance test and all of them were selected for the written
examination. Out of the above 60 successful candidates 59 appeared in the written
test. Out of these 59 candidates, 34 candidates obtained the minimum qualifying
marks but 22 candidates who obtained an aggregate of 50% and above marks in the
written test were called for viva-voce test. After adding the number obtained in the
written test as well as in the viva-voce test, a list was prepared according to merit.
This list included all categories of candidates. It was, however, contended to us that
five names were recommended by the Public Service Commission to the Government
728
and while preparing the list of these five candidates it was kept in mind that the first
two candidates should be from General category as they so applied in response to the
first advertisement. Three candidates of the second list was however prepared in
terms of the roster system.
5. The petitioners' contention is that the idea of keeping the two vacancies which
were first advertised for, in the General category was not in conformity with the spirit
of the existing law and judicial decisions relating to reservation in Government and
Public Sector Undertakings in India. They have also challenged the formation of the
Selection Committee for selection of the candidates. They have criticized the rule
prepared for the recruitment process. The shortlist for calling the candidates for
interview is also a matter in dispute. The proportion of marks allotted for viva-voce
test has been challenged as having not been in conformity with the provisions of the
rules in this respect we are now to deal with these objections.
6. It has been argued that the writ petition itself is hit under the principle of
waiver or estoppel. It has been contended that the petitioners did not object to the
process of selection or to the composition of the Selection Board at proper time and
have come forward with various objections only after the result was somehow known
to them. Decision reported in AIR 1986 Supreme Court 1043 (Om Prakash versus
Akhilesh Kumar) has been referred to by the respondents. The fact of Om Prakash's
case varies from the fact of the case before us. Hence, the respondents cannot claim
much benefit out of it. It is the settled principle of law that there cannot be waiver or
estoppel against statute or against fundamental rights. Basheshar Nath's case as was
reported in AIR 1959 Supreme Court 149 may be referred to in this context. From an
overall assessment we do not think that the petition is worthy of being nipped into bud
on the plea of waiver or estoppel.
7. Before we start with various other contentions of the petitioners covering
different aspects we should note that the selection and/or recommendation was made
by the Public Service Commission of Sikkim and it is needless to mention that Public
Service is an expert, specialized, autonomous body so far as recruitments in public
services are concerned. A court cannot sit on appeal over the decision of the
Commission nor the court is authorized to make is own evaluation setting aside the
same done by any Commission. But what the Court is within its competence to do in
such matters is to see if the process of selection had been made judicially and justly.
If any lacuna is found in the very selection process adopted by the Commission the
Court can very well intervene in the matter.
729
8. Learned Advocate for the petitioners contended that no appropriate rule for the
recruitment process had been framed for recruitment in such cases. Rule 4 of the
Sikkim State Forest Service (Recruitment) Rules 1976 as have been amended from
time to time prescribes the method of recruitment to the service. It is described that
the recruitment against the vacancies would be by direct recruitment and by promotion
on 50:50 ratio. In the instant case, the recruitment is direct. While Rule 5 deals with
recruitment by selection which means promotion, Rule 8 deals with the direct
recruitment and it should be by competitive examination. Rule 8(2) says 'The
examination shall be conduced by the Commission in accordance with such rules and
syllabus as the Government may, from time to time, make in consultation with the
Commission'. It has been contended that no rule so far as the process of recruitment
or so far as prescribing the syllabus has been framed in proper manner. We find that a
rule was framed by the Government detailing procedure and syllabus for the
competitive examination of candidates for the posts of Assistant Conservator of
Forests. It was notified on 22.6.1995. The notification and the Rule have been
annexed to the writ petition itself. It has been criticized on behalf of the petitioners
that though Rule 8(2) contemplates consultation with the Commission, there is no note
in the Rule that the Commission was consulted. To counter this argument it has been
contended on behalf of the Sikkim Public Service Commission that there were series
of correspondence between the Government and the Commission over the rules and
syllabus and accepting the suggestions of the Commission, the Government made
certain changes in the proposed rule and ultimately it was published with amendments
and modifications as suggested by the Commission. Therefore, effective consultation
was made. Another point of argument on behalf of the Commission is that it is the
Commission who is contending that the rule was published on proper consultation
with the Commission. Hence, nobody or no other organization can question the matter
of consultation of the Commission in the matter of framing of rules and syllabus. This
argument sounds very cogent and we cannot accept the argument advanced by the
petitioners in this respect.
9. The petitioner also contended that the Committee framed for taking viva-voce
test of the petitioners was not properly constituted. It has been contended that a
Committee has been prescribed under the Rule of 1976 for recruitment by selection
but no such Committee has been suggested in any other provision of the rule for direct
recruitment and, therefore, we should be guided by Rule 26 which deals with the
residuary matters and provides that where the rule is silent about any particular
provision it should be regulated by the rules and orders applicable to other officers of
730
the Government of equivalent status. Therefore, it has been argued, that the
committee prescribed under Rule 1(a) of the Sikkim Government Establishment Rules
under heading 'Government of Sikkim Decision' should be applicable in the instant
selection process. We cannot accept this argument as we find that it relates to
promotional posts only, not to any direct recruitment. We should keep it in our mind
that in the instant case the Commission appointed a Committee with eminent persons
in the field of forestry and agriculture. The members had enormous academic
qualification and/or experience. There cannot be any provision in any rule prescribing
names or designations of persons who may be included in any selection committee as
experts. We must have some faith and reliance over the prudence and independence
of the Commission. Instant is the case where the Committee formed by the
Commission before us were in order and dependable. Decisions reported in AIR 1966
Mysore 36 (Kenchiah versus State L.R. Committee), AIR 1990 Supreme Court 2063
(Triloknath Singh versus Bhagwandi Misra) and 1090 (1) A.I. Service Law Journal
(Dr.Gorakhnath Misra versus Goa University) Page 66 have been referred to in this
context. None of the three decisions help the petitioner in any manner. In 1966 case
the Committee was not constituted in compliance with the rule. "Here there is no
violation of any rule. Moreover, in that case the rule prescribed inclusion of one of the
members with special knowledge in the matter of recruitment of the post concerned.
Nothing has been prescribed in the instant case, even then two of the members were
having technical qualification and experience in the discipline of the service for which
the recruitment was contemplated. In 1989 case, the Court observed that the
Committee was not constituted according to law, and hence, its recommendation was
held to be invalid. In 1990 case it was indicated that an expert in the line ought to be
included in the Committee. In our case it was so done. Therefore, nothing wrong in
this respect.
10. The record shows that though the minimum qualifying aggregate marks was
40%, but the Commission or the Board called only those candidates who secured
atleast 50 marks in aggregate, for the viva-voce test. By following such a principle
they called only twenty two candidates for interview though according to the rules the
number should have been five times the number of vacancies notified for recruitment.
According to the petitioners atleast twenty five persons should have been called for the
interview. If all persons securing 40% marks were called for interview, the number
would have been 34. This figure is much above 25. Hence, a cut off figure becomes
obvious. It is not an illegality. Short listing of candidates to be called for interview is
an approved phenomenon. Decision reported in (1994) 6 Supreme Court Cases 293
(M.P.P.S.C. vs. Navnit Kumar) may be referred to. In Ashok Kr. Yadav's case 2/3
731
times of the number of vacancies has been prescribed. Moreover, there would not
have been any sense in calling for candidates securing less than 50% marks in
aggregate. If the entire 50 marks allotted for viva-voce test was given to the
candidates securing less than 50% marks in the written test, their position would have
been not within 12/13 candidates. Thus even taking a hypothetical proposition, calling
up candidates securing less than 50% marks in aggregate in the written test would not
have caused any benefit to them.
11. The allocation of marks in the viva-voce test is also a subject matter of
controversy. The rule shows that 400 marks were allotted for written examination and
50% marks was allotted for viva-voce test. The petitioners object to such allocation of
marks. The record shows that initially the marks for viva-voce test was proposed to be
100 and on acceptance of the suggestion of the Public Service Commission it was
reduced to 50. The proportion of 400:50 for written test and viva-voce test are quite
reasonable. The decision in Ashok Kumar Yadav's case as reported in AIR 1987
Supreme Court 454 may be referred to where it has been held that marks allotted for
viva-voce test should not be beyond all reasonable proportion and has prescribed
12.2% to be reasonable. In our case the proportion is perfectly of that degree.
Therefore, this argument also does not stand.
12. The next argument is that there was no classification for marking in the viva-
voce test. Decisions reported in 1980 A.I. Service Law Journal 153 (Dr.
Dhrubashkarn versus Osmania University) and in AIR 1992 Madras 359) (Esthar
Kavitha versus State of Tamilnadu) have been referred to. These cases do not lend
much support to the petitioners. Moreover, we should point out that while we went
through the files maintained by the Public Service Commission in the matter of
selection, it was notified that out of 50 marks, 10 marks were allotted for personality
test, 10 for general knowledge, 20 for professional knowledge and 10 for University
results. Therefore, we finds that marks on different heads were allotted for evaluating
the merit and suitability of each of the candidates. Even if it was not there, the
selection process would not have been vitiated. Madan Lal's case, as reported in
(1995) 3 Supreme Court Cases 486 (at page 494) may be referred to.
13. It has also been argued that no marks have been allotted to the persons having
experience in the line. The aforesaid decision reported in AIR 1987 Supreme Court
454 have been referred to where some latitude was recommended to be given to ex-
servicemen. Concessions to ex-servicemen stand on a different footing. Such cannot
be done for someone working in the Government in some other capacity. We have
732
already noted that 20 marks were allotted for professional knowledge. Definitely
persons having experience in the line must get some extra for their proficiency.
Moreover, age concession has been provided to the candidates already in government
employment. Nothing else can a government employee sitting as a candidate may
expect. We propose to reject this contention alone.
14. Comments were made about the quality of the examiners or about their
competence to examine suitability of the candidates. We have gone through the files
of the Commission relating to the process of examination in the instant case. I find
that the questions for written test were set by eminent persons from different
universities like Calcutta, Burdwan, Bangalore, etc. The evaluators were also from
different universities of India. The viva-voce board comprised the Chairman of the
Service Commission retired Chief Conservator of Forests-cum-Secretary of Forests
and Joint Director of I.C.A.R. We think these personalities to be above controversy.
15. Next comes the very vital question as to reservation policy. We hve already
noted that on 24.6.1995 two posts were advertised for, without keeping any
reservation for any backward class. Learned Advocate for the petitioners took us
through Rule 8(3) of the State Forest Service (Recruitment) Rules which provides
provision for reservation for candidates belonging to Scheduled Castes and Scheduled
Tribes. He contended that the said provision is in conformity with Article 16(4) of the
Constitution of India but the advertisement dated 24.6.95 had given a goby to the
policy of reservation. Learned Advocate General contended that the Government
could not frame rule in this respect and ultimately the reservation policy was adopted
by the State Government with effect from 1st July, 1995 and it was notified in the
Gazette on 5.7.1995. The State Government also adopted the roster policy of the
Government of India and it was notified on 26.8.1995 in the Official Gazette. Since
the reservation policy was accepted by the Government, in the second advertisement
made on 28.9.1995 for three more posts of Assistant Conservator of Forest,
reservation was provided.
16. The Public Service Commission, under the instruction from the Government,
treated the two vacancies which were advertised on 24.6.95 as unreserved vacancies
and the three vacancies which were advertised for subsequently on 28.9.1995 were
treated as general and reserved vacancies as per roster. Thus the first two vacancies
were treated as unreserved, third as reserved for Scheduled Tribe, forth again as
unreserved and the fifth for Other Backward Classes. The Commission sent their
recommendation to the Government accordingly. The instruction of the Government
733
as noted above was under a letter dated 11.9.1995 indicated that all posts under direct
recruitment advertised prior to 1.7.1995 would be dealt with under the old system and
the remaining three posts, advertised after 1.7.1995, to be filled up by direct
recruitment would be as per the roster system. But from the letter of the Government
to the Public Service Commission dated 15.7.1995 we find that in that particular year
the direct recruitment vacancy was five and the promotion vacancy was four. The
letter however did not mention about the roster or so. In response to the above letter
of the Government, the Commission indicated in their letter dated 1.8.1995 addressed
to the Editor, Sikkim Herald that the number of posts of Assistant Conservator of
Forests by direct recruitment had been increased from two to five. Therefore, the
Commission expressed the view to club all the vacancies as were standing during that
period and held the total direct recruitment vacancy for the year 1995 as five.
17. After taking the decision for reservation in the direct recruitment with usual
break-ups for Scheduled Castes, Scheduled Tribes and other Backward Classes, the
Commission issued a Notification on 5.7.1995 wherein it was stated 'All appointments
in vacancies to the direct recruitment posts in the Government and Public Sector
Undertakings as on 1.7.1995 will stand frozen with immediate effect to implement the
reservation policies.' Therefore, all appointments in the vacancies standing on
1.7.1995 was to be filled up according to the reservation policy which was ultimately
brought under roster system. It has been argued on behalf of the respondents that
since the two vacancies were advertised for before the reservation policy was
implemented within this State, those two vacancies should not come under the
reservation policy or under the roster system. Decision of the Supreme Court in
R.K.Savharwal's case reported in (1995) 2 Supreme Court Cases 745, has been cited.
In the said decision Hon'ble Supreme Court dealt with 'posts' and 'vacancies' for the
purpose of working out the percentage of reservation. It was ultimately held that
percentage of reservation had to be worked out in relation to the number of posts
which form the cadre strength. The concept of 'vacancy' has no relevance in working
out the percentage of reservation. In the instant case before us there is no scope for
any controversy between 'posts' and 'vacancies' because all these posts constituted the
cadre and were lying vacant on the relevant date. We cannot appreciate the approach
of the Government that "wherever direct recruitment process had commenced by
advertisement prior to 1.7.1995, they shall be dealt with under the old system." This
line appears at Clause 4(vi) of the Office Memorandum dated 4.9.1995 of the
Department of Personnel, Government of Sikkim. This concept if highly illogical and
not in consonance with the spirit of reservation policy. All appointments to be made
after 1.7.1995 should have been brought under the reservation scheme. Any
734
advertisement for recruitment made prior to 1.7.1995 cannot take away the right of the
candidates coming under the reserved category when the recruitment was yet to be
made. In our case before 1.7.1995 only the advertisement came out. The process of
selection cannot be said to have been started in real terms. Even the last date of
receipt of application was fixed on 17.7.1995. Therefore, we do not consider it proper
to keep the posts, advertised for on 24.6.1995, outside the scope of reservation policy.
18. It would also be pertinent to note that in the second advertisement there was
indication that those belonging to the reserved categories having applied for in
response to the first advertisement were eligible to apply for the reserved posts with
appropriate certificates. No provision was made for those belonging to unreserved
category and applying in response to the first advertisement, to have a chance to come
within the purview of the second advertisement where also one post was reserved for
the general category. Therefore, the candidates within the unreserved category and
applying in terms of the first advertisement had to remain contended with two posts
only and missing the chance to be considered against unreserved vacancy in terms of
the second advertisement. The Public Service Commission decided to keep the posts
covered by two advertisements into separate categories but while dealing with the
recruitment process they had, however, amalgamated the candidates who applied
against both the advertisements. We find that for all practical purpose the
Commission clubbed the candidates of both the advertisements though they treated the
first two vacancies to be of unreserved category. By doing so they have given a goby
to the reservation policy or the roster system.
19. To sum up, we may note that we do not find any breach of the provision of
recruitment rules. Nor do we find anything under which the recruitment process can
be held to be bad. Hence, we do not propose to interfere with the final result sheet of
all the 22 candidates. But we cannot endorse the step taken by the Public Service
Commission, obviously under written direction given by the Government, in the
matter of non-observance of the roster policy or reservation policy so far as the two
posts coming under the first advertisement are concerned. All the five posts should be
treated under the roster policy and recommendations should be made by the Public
Service Commission with respect to all the five posts in conformity with the roster
policy, without making any change to the final result arrived at by the Commission.
20. For practical purpose, the final result sheet may be splitted up in four
categories of unreserved, S.T., S.C. and O.B.C. Recommendations from each of the
categories as arranged in order of merit, may be made according to roster. For the
735
present the recommendation would go from the aforesaid merit lists of four categories
in the order as mentioned in the Notification dated 26.8.1995. To be precise, the first
name in the recommendation list would be the first successful candidate in the S.T.
list, the second name would be the top most in the unreserved list of merit, the third
would be the first from O.B.C. merit list. The fourth would be the second of the
unreserved merit list. There would be some difficulty in recommending the fifth name
as the fifth is to go to the Scheduled Caste group as per roster, but there was only one
Scheduled Caste candidate and he too was not found suitable by the Commission. The
fifth vacancy is therefore to be carried forward or be treated in some other manner as
prescribed under the Rules.
21. With these observations, the writ petition is allowed in part on contest. The
final result arrived at by the Public Service Commission is left undisturbed. However,
recommendations made by the Commission to the Government on 23.2.1996 for
appointment should be modified and made afresh in the light of the observations made
in the body of the judgment. There would be no order as to costs.
***
736
Review Petition Nos.2 & 3 of 1996 D.D. 27.6.1996
The Hon'ble Mr. Justice Malay Sengupta
Bimal Rai & 4 Ors. – Petitioners Vs. Sikkim P.S.C. & Ors – Respondents Cases referred:
1. (1995) 2 SCC 475 (R.K.Savharwal's case)
JUDGMENT
We are considering two review petitions arising out of a judgment passéd by
this Court on 21.5.96 in Writ Petition No.3 of 1996.
2. Review Petition No.2 of 1996 has been preferred by the Sikkim Public Service
Commission while the review petition No.3 of 1996 has been filed by most of the
petitioners of original writ petition No.3 of 1996. There was a day's delay in filing this
review petition No.3 of 1996. Causes shown for the delay are accepted and the delay
is condoned and Misc. Application No.30 of 1006 is disposed of.
3. Since the questions involved in both the review petitions are of identical nature
they are taken up together for consideration with the consent of the parties.
4. In review petition No.3 of 1996 number of points were raised challenging the
process of selection. All these points were already dealt with in the judgment itself
and do not warrant any reconsideration by the Court while dealing with the review
matters. However, the common point of argument in both the review petitions circles
around paragraph 20 of the judgment dated 21.5.96, which we may now deal with.
5. In the judgment in paragraph 20 it was observed that "there was only one
Scheduled Caste candidate and he was not found suitable by the Commission." The
Public Service Commission submits that it is not factually correct and the candidate
with the roll No.14 (Shri Suraj Kumar Thatal) actual belongs to Scheduled Caste
category and he is the lone successful Scheduled Caste candidate. It has been
submitted that in the result sheet that roll No.14 was shown as general candidate as he
was not coming within the consideration zone for appointment. The Public Service
Commission regretted that because of such an omission the Court had to make
observation as above. Whatever be the reason it really speaks very bad on the part of
the Public Service Commission to make such a grave omission resulting in creation of
737
lot of confusion. Whatever be the consequences in the matter of appointments a spade
must be called a spade and whatever be the position of a particular candidate in the
merit list he should have been properly categorised.
6. Anyway, the Government would definitely scrutinize the academic diplomas,
age certificate etc. together with caste certificate before making the appointments. Let
us, under the given circumstances, accept the candidate at roll No.14 (Shri Suraj
Kumar Thatal) as a Scheduled caste candidate. His case may now be taken up by the
Government for appointment, if he comes within the roster and after due scrutiny of
his caste certificate.
7. The next question is that in paragraph 20, this Court observed that the final
result sheet should be splitted up in four categories of unreserved, Scheduled Tribe,
Scheduled Caste and Other Backward Class. This Court further observed that as per
model roster the first successful candidate of the Scheduled Tribe list should be
appointed, the second name would be the top most of the unreserved merit list, third
would be the first from the O.B.C. list and the fourth will be the second of the
unreserved merit list. The fifth would be obviously gone to S.C. if any S.C. candidate
was found in the merit list, otherwise the fifth vacancy would be carried forward or
would be considered in some other manner as prescribed in the rules.
8. It has been stated that if the appointments are made in terms of paragraph 20,
taking unreserved candidates as the candidates of sects other than those of reserved
categories, there would be anomaly and confusion. A copy of the Government of
India Notification No.36012/13/88-Estt (SCT) dated 22.5.1989 has been produced on
behalf of the Public Service Commission to say that paragraph 2 of the said
notification denotes that the S.C. and S.T. candidates who are selected on their own
merit without relaxed standards along with candidates belonging to the other
communities, will not be adjusted against reserved share of vacancies. The reserved
vacancies will be filled up separately from amongst the eligible S.C. and S.T.
candidates which will thus comprise S.C. and S.T. candidates who are lower in merit.
The learned Advocate General rightly points out that the notification simply spells out
the views expressed by the Supreme Court in R.K.Sabharwal's case reported in (1995)
2 SCC 475 (at para 4).
9. To appreciate the argument and counter argument, we may quote from the
recruitment file of the Sikkim Public Service Commission the final result of 10 top
qualified candidates with the categories they belong to:
738
1. S.T. 2. OB.C. 3. S.T. 4. Unreserved 5. S.T. 6. Unreserved 7. O.B.C. 8. Unreserved 9. S.C. (shown as 'general' in the list) 10. O.B.C.
10. For the present there are 5 vacancies. If one goes strictly by the roster, the
vacancies to be filled up would be as follows:
1. S.T. 2. Unreserved 3. O.B.C. 4. Unreserved 5. S.C.
11. But, if the selection is made as per the circular and the order of Supreme Court,
the vacancies are to be filled up by candidates as follows:
The two unreserved vacancies should be filled up by the first two candidates of
the merit list, irrespective of the categories they belong to. Incidentally in the instant
case they are S.T. and O.B.C. The third vacancy would be go to S.T., the fourth to
O.B.C. and the fifth to S.C. as pr model roster. Thus the selection would be for
candidates at Sl.No.1, 2, 3, 7 and 9 of the merit list, as noted in para 9 above.
12. Taking a hypothetical case, if the number of vacancies increase to 9 that means
4 more vacancies are created, the same according to the model roster system would
come to Unreserved, S.T., Unreserved and O.B.C. But applying the circular and the
Supreme Court decision the two unreserved vacancies out of these four would again
go according to the merit. In the instant case it will then be Unreserved and S.T.
(Sl.Nos.4 and 5 of the combined merit list noted in para 9 above) and the rest two
vacancies will go to S.T. and O.B.C. as per model roster and thus for the new 4
vacancies the distribution would be as follows:
1. Unreserved (Sl.No.4 of the combined merit list) 2. S.T. (Sl.No.5 in the combined merit list) 3. S.T. (Some one even below Sl.No.10) 4. O.B.C. (Sl.No.10 of the combined merit list)
13. Thus, it is apparent that if by way of applying the above noted principle, the
first 5 seats are filled up, not a single seat would go to any member of the community
not coming within the reserved variety of communities and it would mean 100%
reservation for the reserved categories. Even if the vacancy number is increased by 4,
3 more would go to the reserved categories and 1 only to unreserved. Thus for 9
739
vacancies there will be only one from the category other than reserved and rest 8 from
the reserved categories.
14. Learned Advocate for the petitioners in review petition No.3 of 1996 has
opposed vehemently such a situation. He contends that time is not far off when
candidates from categories other than the reserved categories would have to knock at
the doors of the Courts to have some posts for them. Further contention is that as a
matter of principle the Supreme Court has held that by no means the reservation
should exceed 50%. Keeping that in view the model roster has been prepared. But in
a round about manner the number is going up and a new ratio of percentage comes in
which in all cases in much above 50%.
15. We can appreciate the sentiment of the petitioners who curse themselves for
not coming within any categories of reservation. But sorry, we can't help till the views
of the Government and of the Court changes. The decision of he Supreme Court is
binding on everybody and Article 141 of the Constitution of India stands on the way.
16. Therefore, we must hold that the para 20 of the judgment dated 21.5.96 should
be read in the light of the observations made by the Hon'ble Supreme Court in
Sabharwal's case and in terms of the notification issued by the Government of India on
22.5.89 and that if candidates from the reserved category come up at the top of
combined merit list, they should be given the selection irrespective of the category to
which they belong and in the event of their appointment to the said post their numbers
cannot be added and taken into consideration for working out the percentage of
reservation.
17. The Public Service Commission would send the complete merit list to the
Government. This merit list would be the same as finds place in the record of Public
Service Commission as 'Final List' dated 12.2.96, in addition to which they would
indicate the categories to which each of such candidates belong.
18. The Government would make appointments from the list in terms of prescribed
rules, the Government of India circular and the decision of the Supreme Court, after
scrutinising documents of age, qualification, residence, caste etc.
19. With these observations the Review Petition No.2 of 1996 and 3 of 1996 are
disposed of on contest without cost.
***
740
Civil Writ Petition No.45 of 1995 D.D. 02-09-1996
The Hon'ble Mr. Justice Malay Sengupta
S.D.Karthak Lepcha – Petitioner –vs- Saran Kumar Thapa & Others – Respondents
Held – It is settled principle with regard to the subordinate legislations that when a Rule is not in conformity with the Act, the provision of the Act would prevail. Similarly, if any departmental instruction is in contradiction with the provisions of the Rule, the latter would prevail (AIR 1970 Rajasthan 173 Goman Singh –vs- State of Rajasthan and 1989(1) SCC 175 SCC 175 (Union of India –vs- Soma Sundaram Vishwanath).
Selection by promotion to the post of District Civil Supplies Officer from the
cadre of Inspectors – Rule 6 of the Sikkim Government Establishment Rules provides that promotions should be on the basis of seniority but subject to fitness and any other conditions laid down by the Government from time to time – Clause 1.7 of the notification dated 28.1.80 which was issued prescribing procedure for effecting promotion, gives illustration as to how the remarks in the A.C.Rs should be ultilised for the purpose of selection of candidates for promotion - Following Clause 1.7 the D.P.C. selected and recommended Respondent No.7 who was below the petitioner in the seniority list for promotion and has been consequently promoted as per order dated 2.11.95 – The High Court has held that clause 1.7 is applicable in case of promotion to a selection post and it is inapplicable in case of promotion simpliciter. The High Court has consequently set aside the order dated 2.11.95 and directed D.P.C. to reconsider the matter.
JUDGMENT
This case arises out of a petition filed under Article 226 of the Constitution of
India.
2. The fact of the case relevant for our purpose is that the petitioner was initially
appointed as a graduate clerk in a Government Department of Sikkim. On 12.2.77 he
was promoted to the post of Inspector and became attached to the Food & Civil
Supplies Department. He was selected and underwent training on various subjects
necessary in the Food & Civil Supplies Department. Exactly eight months after the
appointment of the petitioner as Inspector, three more persons were appointed so.
Those three included the respondent No.1 who was a matriculate and held the post of
Sub-Inspector in the Food Department before his promotion as aforesaid. The only
scope for promotion available to the Inspectors of the Food Department was the post
of Town Rationing Officer which was subsequently redesignated as District Civil
Supplies Officer.
741
3. Sometime in 1988 respondent No.1 was picked up from amongst the
Inspectors and he was appointed as District Civil Supplies Officer on officiating basis.
The respondent No.1 was junior to the petitioner and other inspectors and was under
qualified. Sometime in 1990 the Government sent a requisition for the post of the
Town Rationing Officer to the Public Service Commission and requested the
Commission to arrange selection of one of the Inspectors to the said post on promotion
basis through Departmental Promotion Committee. The Departmental Promotion
Committee as formed under Notification dated 23.6.87 took the decision on its
meeting dated 6.4.90 and sent recommendation to the Government in favour of
respondent No.1 by its letter dated 9.4.90. The petitioner raised objection to such
selection and sent representation to the Government. In consideration of the
representation of the petitioner, the Government decided not to approve the said
recommendation and sent a fresh proposal to the Public Service Commission for
making recommendation afresh. That proposal reached the Public Service
Commission in mid 1995. The P.S.C. intimated the Government that while making
the recommendation in 1990 they took into consideration the seniority of the petitioner
as Food Inspector and found the respondent No.1 to be most suitable for the job. The
P.S.C. therefore refused to review its recommendation made in 1990. On receipt of
this letter from the P.S.C., the Government issued appointment letter in favour of
respondent No.1 on 2.11.95 appointing him as District Civil Supply Officer with
retrospective effect from 9.4.90.
4. Being aggrieved over the situation the petitioner has filed this writ petition
mainly challenging the order of promotion of respondent No.1
5. The writ petition is being contested by three sets of respondents separately.
The submission of the Government (respondent No.2) is that there was no nepotism,
favouritism or irregularity at any stage of the proceeding which culminated in the
selection and appointment of respondent No.1 in the post of District Civil Supply
Officer. Respondent No.1 might have been slightly below the petitioner in the
seniority list but the P.S.C. took the seniority and merit of each of the candidates and
made the recommendation. The Government, in consideration of the representation
made by the petitioner to the Government referred the matter to the P.S.C. once again
with request to review its decision. But the P.S.C. held that there was no reason to
deviate from its earlier decision in the matter of recommendation.
742
6. The P.S.C. (respondent No.3) contends that they have made their
recommendation fairly in consideration of the A.C.Rs. and also in strict compliance
with the rules and government instruction in this respect.
7. The contention of respondent No.1 is that his name was duly recommended by
the P.S.C. in consideration of his merit and that as he was continuing to officiate in the
said post from before and since his name was recommended in April, 1990, he was
given appointment with retrospective effect from the date on which he ought to have
been appointed on the basis of the recommendation made by the Public Service
Commission.
8. There is no dispute over the fact that the post of District Supply Officer was to
be filled up by promotion from amongst the Food Inspectors. Both the petitioner and
the respondent No.1 were Inspectors and that besides them three more names of
Inspectors were considered by the P.S.C. while making the recommendation. Rule 6
of the Sikkim Government Establishment Rules deals with the matter of promotion. It
has been laid there that the promotions should be on the basis of seniority but subject
to fitness and any other conditions laid down by the Government from time to time.
The Government of Sikkim took certain decisions and issued Notifications from time
to time in amplification of or for giving proper effect to the provision of Rules. By a
notification dated 28.1.80 several Departmental Promotion Committees were formed.
Since the promotion to the post of District Civil Supply Officer is an entry into the
lowest gazetted post, a Committee was formed as per Clause 1.1A of the above noted
instruction. It was recasted in June 1987, possibly consequent upon the formation of
Public Service Commission in the State. Clause 1.4 of the notification prescribes that
five eligible persons are to be brought within the consideration zone when the vacancy
is only one. Clause 1.4 of the notification prescribes that five eligible persons are to
be brought with the consideration zone when the vacancy is only one. Clause 1.5 of
the Notification indicates that the Annual Confidential Reports for the past five years
excluding the year in which the matter is being considered shall be taken into account
by the Committee. Clause 1.7 gives a vivid illustration as to how the remarks in the
A.C.Rs. are to be utilized for the purpose of selection of the candidates for promotion.
9. At the very outset it has been alleged by the petitioner that the respondent No.1
was treated in a manner different from the rest of the Inspectors as the happens to be
nephew of the Joint Secretary of the Food & Civil Supplies Department. It has been
stated that though the minimum qualification for the Inspector was graduation, the
respondent No.1 though a matriculate was appointed as Inspector. He was No.5 in the
743
seniority list and ultimately became No.4 on account of death of Inspector
D.P.Sharma. The position of the petitioner is at Sl.No.2. It has further been alleged
that the promotion should have been on the basis of seniority and if the senior man is
found to be unfit for any reasons whatsoever, the case of the next senior man should
be considered for promotion. But that has not been done in this case of promotion.
The P.S.C. might have relied on Clause 1.7 of the Government Notification/Instruction
and ignored the seniority of the concerned officers. The petitioner urged that the
instruction under Clause 1.7 is bad in law as it hits the basic structure of Rule 6.
10. The petitioner submits further that the respondent No.1 was allowed to
officiate in the post of Town Rationing Officer or District Civil Supply Officer
ignoring the claim of other Inspectors senior to the respondent No.1. The allegation of
the petitioner is that the Joint Secretary, uncle of respondent Nl1, managed not only
the entry of the respondent No.1 in the service as Inspector defying the Rules, not only
his officiating promotion out of turn but also giving superlative remarks in the A.C.Rs.
which resulted in befooling the Departmental Promotion Committee.
11. To appreciate the situation, we would require to deal with a few
correspondence between the Government and the P.S.C. But even before entering into
the matter we must once again note that the case is of promotion to the lowest gazetted
post in terms of Rule 6 of the Sikkim Government Establishment Rules, 1974 and that
such a matter is to be dealt with by a Departmental Promotion Committee as pr Clause
1.1A of the Establishment Department Notification No.286/GEN/EST dated 28.1.80
read with Notification No.89/GEN/EST dated 12.6.87. Whatever has been
contemplated in these rules is that the promotion shall be on the basis of seniority
subject to fitness which is to be assessed by the Departmental Promotion Committee.
Incidentally in the latest formation of the Committee, the Chairman and the Member
of the Sikkim Public Service Commission have been included in the Committee.
Hence, it cannot be said that the matter of promotion to the lowest gazetted post is to
be dealt with by P.S.C. It might be that P.S.C. was made the Nodal Office for such
purpose. Unfortunately, the correspondence between the Government and P.S.C. over
the issue gives an impression as if the matter of promotion is being dealt with by the
P.S.C. itself. Even in their Affidavits the respondents described the position in such a
manner that everything was done by the P.S.C. The D.P.C. virtually finds no place in
the pleadings.
12. On 28.2.90 the first requisition was sent from the Government to the P.S.C. for
selection of Town Rationing Officer on promotion from the Inspectors. The D.P.C.
744
held its meeting on 6.4.90 and considered the A.C.Rs. and service records of give
senior most Inspectors and on the basis of overall relative assessment made on the
A.C.Rs. found the respondent No.1 suitable for promotion to the post of Town
Rationing Officer. The P.S.C. sent their recommendation accordingly on 9.4.90.
After more than four years the Government informed the P.S.C. on 26.7.94 that on the
basis of recent decision of the Government and vacant post of District Civil Supply
Officer was to be filled up by promotion from amongst the service Inspectors. In this
latter it was indicated that respondent No.1 was holding the said post on officiating
capacity. It may be noted incidentally that the post of Town Rationing Officer was
designated as District Civil Supply Officer in the meantime. On 1.4.95 the P.S.C.
informed the Government that since the post of District Civil Supply Officer is the
same as that of Town Rationing Officer and since the D.P.C. already made a
recommendation on 6.4.90, there was no further action to be taken. After sometime
the P.S.C. again wrote to the Government on 26.5.95 asking for the reason for not
accepting the recommendation dated 6.4.90. The Government in its turn sent a letter
to the P.S.C. on 20.6.95 stating that the recommendation of the P.S.C. for promoting
respondent No.1 was not approved by the Government on 14.5.90 on account of
representation submitted by the petitioner who claimed to be senior to the respondent
No.1 P.S.C. replied to this letter on 5.7.95 to the effect that the petitioner's seniority
over respondent No.1 was taken into consideration by the Selection Committee on
6.4.90 and found the respondent No.1 most suitable for promotion. The Commission
requested the Government to let them know if there were any other reasons warranting
review of recommendation already made by the Commission. Since the P.S.C. did not
think it proper to review the matter any further, the Government on receipt of the
above letter dated 5.7.95 issued an order on 2.11.95 promoting the respondent No.1 to
the post of District Civil Supply Officer with effect from 9.4.90. After issuance of that
order, the Government informed the petitioner on 10.11.95 with reference to his
representation and demand justification notice that his case of promotion could not be
considered at that moment.
13. We should once again note that it was a Departmental Promotion Committee
and not the P.S.C. who made the recommendation. Non-acceptance of the
recommendation of Departmental Promotion Committee is not that difficult a thing on
the part of the Government. Had it been a recommendation of the P.S.C. things could
have been a little different. When the Government by its letters dated 26.7.94 and
20.6.95 clearly indicated that the Government did not approve the recommendation of
the D.P.C. and asked for further recommendation, the P.S.C. office should not have
outright rejected the proposal of the Government to have the matter assessed afresh by
745
the D.P.C. Moreover, there is nothing on record to show that the D.P.C. itself had a
sitting and took a formal decision before the letters dated 1.4.95 and 5.7.95 were sent
from the office of the P.S.C. to the Government. Thus the veracity of the decision for
outright rejection of the Government's proposal dated 26.7.94 and 20.6.95 becomes
doubtful.
14. We have before us only one proceeding of the D.P.C. which is dated 6.4.90
and which indicates that the D.P.C. took the decision on the basis of overall relative
assessment made on the Annual Confidential Reports. It gives us the impression that
the D.P.C. was guided by Clause 1.7 of the instruction of the Government in
connection with Rule 6 of the Establishment Rules, 1974. We may find from this
Clause that if the entries in the A.C.R. are of excellent quality, a candidate having 7th
or 5th position in the seniority list might occupy number 1 position for the purpose of
Departmental Promotion. It is to be seen if this Clause 1.7 is in conformity with Rule
6 which provides that the promotion should be on the basis of seniority subject to
fitness. We have already noted the implication of Clause 1.7. It is in complete
defiance of the provision prescribed in the Rue. It is the settled principle with regard
to the subordinate legislations that when a Rule is not in conformity with the Act, the
provision of the Act would prevail. Similarly, if any departmental instruction is in
contradiction with the provisions of Rule, the latter would prevail. Decisions reported
in AIR 1970 Rajasthan 173 (Goman Singh versus State of Rajasthan) and 1989(1)
SCC 175 (Union of India versus Soma Sundaram Vishwanath) would confirm the
above proposition. Rule 6 indicates priority on the seniority over fitness. But Clause
1.7 suggests that quality would make the seniority insignificant. This Court in its
decision dated 8.6.92 in Writ Petition No.4 of 92 confirmed the position that Rule 6
contemplates seniority as the principal basis of promotion. Learned Advocate General
referred to a decision dated 27.6.95 in Civil Writ Petition No.19 of 02 by the same
Judge to show that a contrary view was taken. A reading of the two judgments would
not lead us to the conclusion that the view taken in these two decisions are
contradictory. Again we have before us the decisions reported in 1983 (2) SLR 183
(T.N.Sankara Sundaram versus Director of S & P) and (1973) 2 SCC 836 (Union of
India versus M.L. Capoor) which indicate that in case of promotion, the seniority
should be the prevailing factor. We should further note that quality and merit might
prevail over seniority when it is a question of appointment in any selection post.
Besides the above two decisions we may refer to the decision reported in AIR 1967
S.C. 1910 (Sant Ram versus State of Rajasthan) in this context. The State is also
conscious about the legal position and for the said reason in its affidavit dated 8.4.96 it
categorically stated "the present post being a selectional post and not a promotional
746
post respondent No.1 was promoted on merit-cum-seniority". But ultimately the
respondents conceded that the instant case was not a case of promotion to a selection
post.
15. It has been pleaded by the petitioner that as Clause 1.7 of the Departmental
Instruction is contrary to the specific provision in Rule 6 this particular clause should
be held to be invalid. It is true that Clause 1.7 of the Departmental Instruction is
contrary to Rule 6 of the Establishment Rules. But this Clause 1.7 cannot be held to
be invalid outright. Clause 1.7 holds quite good so far as promotion to a selection post
is concerned but it is bad and inapplicable in cases of promotion simpliciter.
16. We have already pointed out that the Departmental Promotion Committee
made the recommendation on the basis of Annual Confidential Reports only. That
means invoking Clause 1.7 of the Departmental Instructions. Since it is not a case of
promotion to selection post, the Committee palpably worked under misconception.
Therefore, the decision of the Selection Committee on 6.4.90 suffers from material
irregularity and illegality.
17. In cases of promotion in non-selection post, seniority should receive prime
consideration. Fitness should obviously be examined. But not in the manner as
illustrated under Clause 1.7. Grammatically fitness means suitability. It can be
judged from various aspects besides entries in the A.C.Rs. Academic qualification
must be one of the elements in assessing the suitability. In Sikkim, academic
qualification receives priority in many respects. Rule 10(a) of the Establishment Rules
is a glaring example.
18. Since the D.P.C. while considering the candidature on 6.4.90 was guided under
a wrong application of the provision of law and since the D.P.C. had no occasion to
apply its mind on the proposal of the Government to make the recommendation afresh,
we cannot endorse the step taken by the Government in issuance of the retrospective
order of promotion on 2.11.05. At the same time we cannot impose any decision on
the Departmental Promotion Committee. It has neither been pleaded or prayed by the
petitioner nor is permissible under the law to replace respondent No.1 by the
petitioner. Decision of the Supreme Court in State Bank of India versus Md.
Mynuddin reported in AIR 1987 S.C. 1889 may be referred to in this context. It
should also be noted that such a prayer could also not have been made by the
petitioner as he does not hold position at Sl.No.1 in the seniority list of Inspectors.
747
19. We should also keep in our mind that the respondent has been officiating in the
promotional post since 1988 though the initial officiating promotion was made in
defiance of all the norms and rules. It is needless to mention that even in adhoc and
officiating appointments, norms and rules are to be followed strictly. However, it
would not be just and prudent to make any mandatory order to pull the respondent
No.1 down from the post where he has been working so long, even on illogical and
illegal manner.
20. From the above discussions it is,
ORDERED
That the writ petition be and the same is allowed in part on context but without any
costs. Departmental instruction at Clause 1.7 is held invalid so far as promotion to
non-selection post is concerned. The order of the Government dated 2.11.95 is set
aside. The Departmental promotion Committee would reconsider the requisition of
the Government for recommendation for appointment in the post of District Civil
Supply Officer on promotion in due consideration of the candidature in the light of the
observations made in this judgement. The respondent No.1 would, however, continue
to officiate in the post till final appointment is made by the Government on the
recommendation of the Departmental Promotion Committee.
***
748
Writ Petition No.30 of 1996 D.D.04.08.1997
The Hon'ble Mr. Justice M.Sengupta, Acting Chief Justice
K.B.Tamang - Petitioner –vs- State of Sikkim & Others – Respondents
Held – Under Clause 6 of the Rules D.P.C. has discretion to fix the qualifying marks in the written test and it has also discretion to lower the percentage of qualifying marks fixed considering the number of candidates and the vacancies.
Selection by promotion to the post of junior grade of Sikkim Finance and
Accounts Service on the basis of Departmental Examination consisting of 2 papers carrying 100 marks each and those qualified in the written examination are eligible for interview carrying 25 marks and 25 marks to be allotted for service records. The grievance of the petitioner who was unsuccessful is that though Respondent No.5 B.N.Pradhan secured less than the qualifying marks of 40% in the written examination was selected by awarding grace marks. Hence, his selection is arbitrary and discriminatory. Clause 6 of the Rules gives discretion to the D.P.C. to fix qualifying marks in any or all the subjects in the written test. On examination of the records, the High Court has found that as only 17 candidates as against 19 vacancies would be eligible for interview if qualifying marks are fixed at 35% fixed qualifying marks at 30% in the written Examination – Respondent No.5 was the last candidate among the qualified candidates securing 18 marks in paper-II and 42 marks in Paper-I in all 60 i.e. 30% - There were interpolations in the score sheet in respect of Paper-I raising suspicion. However, the High Court has dismissed the writ petition holding that on the basis of suspicion alone the selection of R5 cannot be held arbitrary or discriminatory.
JUDGMENT
It is an application under Article 226 of the Constitution of India.
2. The case of the petitioner is that the Sikkim Public Service Commission held a
limited departmental competitive examination in 1995 for promotion of senior
accountants to the junior grade of Sikkim Finance and Accounts Service as Accounts
Officers. The petitioner initially joined Govt. service as an LDC in the Education
Department. After serving several other departments and institutions, he became an
Accountant and thereafter was promoted to the post of Senior Accountant in 1992.
While he was attached to the Agriculture Department as Senior Accountant, he
became eligible to sit for the above noted competitive examination. There were 34
Senior Accountants who were at par with the petitioner so far as qualification for entry
into the Accounts Service was concerned.
749
3. Out of the aforesaid candidates, 33 actually appeared in the written
examination and 19 out of the same were called for personality test and all those 19
were ultimately promoted.
4. It has been contended by the petitioner that for being qualified for personality
test, one had to secure minimum of 40% marks in each of the two written papers. It
has been alleged by the petitioner that Shri. B.N.Pradhan, one of the candidates in the
aforesaid examination could not secure the minimum prescribed marks but he was
shown some favour and some grace marks were added to the marks obtained by him in
the written test to make it 40% and thus he was made qualified for the personality test.
Grievance of the petitioner is that though he and other candidates who were placed
identical with Shri B.N.Pradhan were not treated equally as no grace marks were given
to any of them. The contention of the petitioner is that the act of the department of
Public Service Commission was illegal, arbitrary and discriminatory and violative of
the principles of Articles 14, 15 and 16 of the Constitution of India.
5. The petitioner has, therefore, filed this writ application against the State
Government, State Public Service Commission, Department of Personnel and also
against Shri B.N.Pradhan. The main prayer is for a declaration that the relaxation or
grace marks given in favour of respondent No.5 (Shri B.N.Pradhan) was illegal,
arbitrary, unjust, discriminatory and against the principles of natural justice. Further
prayer is that the respondent Nos.1 & 2 should be asked to cancel the promotion of
respondent No.5 and a direction on the respondents is to be passed to prepare and
publish afresh a list of successful candidates strictly on the basis of the merits of the
candidates.
6. The writ has been contested by respondent nos. 1 and 2 though no affidavit in
opposition was filed by respondent No.1. The contention of respondent no.2 as made
out in the affidavit in opposition is that neither the Commission fixed 40% as the
qualifying marks for a call for personality test nor any grace marks had been given to
respondent no.5.
7. We should see if there was any violation of rules or norms in the instant case
of departmental competitive examination for promotion to the Accounts service. We
are also to see if there was any discrimination made amongst the candidates who were
otherwise equally placed.
8. At the time of hearing and even after conclusion of arguments, the Public
Service Commission (respondent No.2) was asked to produce all the relevant files and
750
also the sealed cover containing answer scripts. The Public Service Commission
complied with the direction and this Court had the opportunity to go through the
relevant portions.
9. We find that the Finance Department of the State Government framed Rules
for limited departmental competitive examinations for promotion to junior grade of
Sikkim Finance and Accounts Service which was notified on 23.7.1991. The Rules
show that the candidates eligible for promotion were to sit for written examination in
two papers carrying 100 marks each. The candidates found qualified in the written
test were to be called for Personality Test carrying 25 marks. Further 25 marks was
allotted for evaluation of the service records. Therefore, the total marks for the written
test come to 200. Clause 6 of the Rules indicate that the selection board would have
the discretion to fix qualifying marks in any or all the subjects in the written test. We
have gone through the records and found that after the written test was completed, it
was noticed that only 17 candidates secured 35% and above. Since the number of
vacancies was 19, the Committee decided to bring the qualifying marks further down.
It was found that if the qualifying marks was fixed at 30%, 19 candidates could have
been called for personality test. Thus, the Committee decided to bring down the
qualifying marks to 30%. Since the rule itself authorizes the Commission to fix the
qualifying marks, nobody can grudge against the decision. Moreover, no
discrimination had been made in this regard. All those candidates securing 30%
marks were called for personality test. Further from the recruitment file, we did not
find any instance of discrimination amongst the candidates or arbitrariness in fixing
the minimum qualifying marks.
10. Next comes the allegation of giving grace marks to respondent No.5. In the
recruitment file, we find a chart showing marks obtained by each of the candidates in
the written test paperwise. There are a few tabulation sheets showing marks obtained
by each of the candidates roll number wise in each of the papers. These charts are very
exhaustive and the marks obtained by the candidates against each of the questions
have been shown. From all these lists we find that the petitioner before us failed to
secure total marks of 60 out of the total aggregate in two papers. Respondent no.5,
however, got the minimum qualifying marks of 60 by way of adding the marks
secured by him in both the papers. Thus, respondent no.5 was also called for
personality test. Record shows that respondent no.5 secured the lowest marks amongst
the 19 qualified candidates in the written test.
751
11. From the other sheet, we find that in personality test and evaluation of service
records Shri Pradhan secured almost the lowest marks amongst the 19 qualified
candidates. Therefore, it is apparent that Shri B.N.Pradhan was not at all a very good
candidate and might be that was the reason which brought suspicion in the mind of his
colleagues including the petitioner when they found him through in the departmental
competitive examination. But nothing doing. Though after all written test, personality
test, etc. he secured the lowest amongst the 19 candidates, his elevation cannot be
questioned on the ground o discrimination, grade or anything of like nature.
12. In spite of aforesaid position one thing is very curious. Respondent No.5 got
only 18 marks out of 100 allotted for paper II of the written examination but appears
to have secured 42 marks in Paper I and we may note that this 42 marks was the marks
just required to make him eligible for the personality test. One would not have raised
his eye-brow over such a coincidence but we find from the score sheet that all the
entries against each of the questions in Paper I against roll No.13 (Respondent no.5)
were interpolated. In the neatly arranged score sheet for paper No. I his is the only
case where interpolations were made with respect to the scores against all the
questions. This leaves scope for suspicion. We verified the assessment made on the
answer script of Paper I of this candidate. Question wise evaluations made in this
particular answer script however tally with the interpolated figures in the score sheet.
Suspicion can obviously be raised but suspicion is not proof and we cannot act upon
such suspicions only. On the answer script of this respondent we did not find any
signature of the Invigilator. Again that cannot make out anything other than suspicion
because not only in case of Roll No.13, but in all the answer scripts relating to roll
nos.12 to 22, signature of the invigilator is missing.
13. Though there is scope for suspicion over the scoring of marks by Shri Pradhan
and though it is apparent that a rather bad candidate is through in such a test, nothing
can be done by this court. We should keep in mind that it is not an appeal forum from
the decisions of the Public Service Commission. This Court has the limited
jurisdiction to see if arbitrariness and discrimination have been apparent on the face of
record and nothing beyond that. In the instant case we find no reason to interfere with
the selection of respondent no.5.
14. In view of all we discussed, we do not find any merit in the writ petition. It is
therefore dismissed without any order as to costs.
***
752
TAMIL NADU PUBLIC SERVICE COMMISSION
753
MADRAS HIGH COURT Writ Appeal No.1030/87
D.D.28.7.1987
Hon'ble Chief Justice Sri. Chandurkar Hon'ble Mr. Justice Srinivasan
R.Venkatachalapathy - Appellant (petitioner) Vs. Joint Secretary to Govt. Secretariat & Ors. – Respondents Autonomy of P.S.C. to prescribe subjects, schemes or syllabus for the Competitive
Examinations – Articles 315 and 320 of the Constitution.
Government as per letter dated 16.2.87 suggested to P.S.C. to include 5 more subjects as optional subjects in addition to 20 additional subjects prescribed for examination to recruitment to various posts in Group-I – P.S.C. did not include the said subjects in the advertisement issued for recruitment – Aggrieved by that Appellant (petitioner) filed Writ Petition – Writ Petition was dismissed with a direction to P.S.C. to include the 5 subjects for the next examination – Against the said order the present Writ Appeal was filed – The Division Bench dismissed the Writ Appeal confirming the order in the Writ Petition. Held – The appropriate authority to announce the subjects, schemes or syllabus of Examination to be held for recruitment to various posts is only P.S.C. It is not open to the State Government to control the holding of the Examinations by P.S.C. The above order of the High Court has been confirmed by the Supreme Court in Civil Appeal No.2004/97 by dismissing the Civil Appeal as having become infructuous as per order dated 5.7.93.
JUDGMENT
The question involves in the stay petition is substantially the same as in the
writ appeal. Consequently, by consent of parties, the writ appeal itself is taken up for
disposal.
The appellant came to this court under article 226 of the Constitution with the
grievance that though the Government issued a letter dated 16.02.87 in the name of the
Special Commissioner and Secretary to Government. Personnel and Administrative
Reforms (Per.M) Department, Fort St. George, Madras-9 addressed to the Secretary,
Tamil Nadu Public Service Commission, Madras-2 by which Government purported to
make an amendment to G.O. Ms No.603 issued by the Personnel and Administrative
Reforms (Per.M) Department dated 12.06.1985 by adding five as optional subject to
the twenty optional subjects already prescribed for examinations to be held for
recruitment to the various posts in Group I, the said order has not been given effect to.
The Occasion for the appellant to come to this Court arose because in the
advertisement issued by the Tamil Nadu Public Service Commission, the optional
754
subjects prescribed were only twenty. The contention was that the Government having
directed the Tamil Nadu Public Service Commission to add the five optional subjects,
the Public Service Commission was bound to prescribe those five subjects also as
optional subjects.
The learned Additional Government Pleader who appeared before the learned
single Judge seems to have stated before the court that the matter was under
correspondence since the syllabus has not been prescribed for the various subjects and
without such prescription, it was impossible to have the question papers set nor the
students could be informed as to what syllabus they were to follow for the additional
optional subjects. The learned judge, however, gave a direction while dismissing the
writ petition that the Tamil Nadu Public Commission should include the five subjects
for the next examination soon after the prescription of the syllabus. The writ petition
having been dismissed, the appellant has filed the present writ appeal against this
order.
We put a question to the learned counsel for the appellant as to the power of the
State Government to prescribe the course of the subjects for the examination to be held
by the Public Service Commission. We were referred by the learned counsel to article
315 read with Article 320 of the Constitution. The contention is that if those articles
are read together, the duty of the Public Service Commission is to conduct
examinations for the benefit of the State and consequently the State has the power to
direct the Public Service Commission to prescribe certain subjects. We put the same
question to the learned Government Pleader who also appear for the Tamil Nadu
Public Service Commission and he placed before us a letter dated 5.6.1987 written by
the Secretary and Controller of Examinations-in-charge, Tamil Nadu Public Service
Commission in reply to the letter dated 7.5-1987 by which the Government purported
to prescribe the five optional subjects for examinations to be held by the Public
Commission. In the said letter dated 5.6.1987 the Public Service Commission has
written to the Government that "none of the universities in this state award post
graduate degree in Community Development, International Relations, Management
and Public Administration" The Public Commission also stated in the letter that "as
the syllabi for five subjects have not been formulated and practical difficulties are
envisaged in formulating the syllabi for them especially for the subject in engineering
of post graduate degree standard, these subjects have not been included in the optional
subjects for the present recruitment."
755
On hearing the learned counsel for the Appellant and the learned
Government Pleader it appears to us that the claim of the appellant is wholly mis-
conceived. There are rules which are framed by the Tamil Nadu Public Service
Commission which regulate" its procedure and its relations with the Government and
the subordinate authorities". Rule 2 of the Tamil Nadu Public Service Commission
Rules of procedure read as follows:-
R2:- "Where any competitive examination is to be conducted by the Commission for the purpose of direct recruitment to a State and Subordinate service, the Commission shall
i) announce-
(a) and (b) .. .. .. .. .. .. .. ..
c) the subjects, schemes or syllabus of the examination, and 1).. .. .. .. .. .. ..
ii) make all arrangements for the actual conduct of the examination:
Provided that where the competitive examination comprises interview only and
where the number of qualified applicants is unduly large, having regard to the actual
number of vacancies available, the Commission may restrict the number of candidates
to be subjected to the oral test (interview) to such extent as it may deem fit into
account the higher qualifications and attainments of the qualified candidates and also
the requirements with reference to the rule of reservation of appointments where it
applies or by subjecting the qualified candidates to a written examination of such
standard as the Commission may consider necessary".
The rule makes it clear that where a competitive examination is to be
conducted by the Public Service Commission, it is the duty of the Commission to
announce the subjects schemes or syllabus of the examination. The appropriate
authority to announce the subject, schemes or syllabus of the examination is only the
Public Service Commission which under the frame of our constitution is an entirely
autonomous body. We have not been able to fine any power in the State Government
to prescribe subjects for the examination to be held by the Public Service Commission.
Indeed, such a power must be held to be negatived by Rule 2 of the Tamil Nadu Public
Service Commission rules of Procedure. A bare look at the provisions of the
Constitution and the rules which deal with the Public Service Commission is enough
to indicate that the letter dated 16.02.1987 is wholly without any authority of law. It is
not open of the State Government to control the holding of the examinations by the
756
Tamil Nadu Public Service Commission. It is different matter that a decision taken by
the State Government be accepted by the Public Service Commission. But it is
difficult to accept the argument that the Public Service Commission will have to carry
out the directions of the State Government in the matter of prescription of the subject
for and the manner of holding the examinations. Such a power of the State
Government if upheld will seriously erode the autonomous status of the Public Service
Commission which is contemplated by the provisions of the Constitution. The writ
petition was, in our view, wholly misconceived and deserved to be rejected.
Accordingly we dismiss the writ appeal. However, in the circumstances of the case
we make no order as to costs.
***
757
TRIPURA PUBLIC SERVICE COMMISSION
758
GAUHATI HIGH COURT W.P.(C)582/1999 & W.P.(C)607/1999
D.D. 27.4.2000
Hon'ble Mr. Justice M.L.Singhal
Shri Nachiketa Dutta – Petitioner Vs. The State of Tripura & Others – Respondents
1) Whether qualification prescribed possessed by the selected candidates is recognized qualification? YES
2) Whether PSC has violated the ceiling of 12.5% marks fixed for
interview/Viva-voce fixed by Supreme Court? No
Recruitment to the posts of 25 posts of Medical Officer (Homoeo) under the
Health and Family Welfare Department of State of Tripura – Though the selected candidates (respondents) did not possess the qualification specified in the advertisement High Court found the same to be equivalent qualification – Hence rejected the contention of the petitioners that selected candidate did not possess the required qualification. Regarding allegation of violation of ceiling of 12.5% marks for the Viva-voce examination fixed by the Supreme Court in AIR 1987 SC 454 the High Court has held that the same is applicable only in those cases where the selection is based both on written examination and viva-voce and not to those cases where the selection is based on viva voce alone and dismissed the writ petition.
JUDGEMENT AND ORDER
I have heard Mr. BB Deb, learned senior counsel for the petitioner in W.P.(C)
No.582/99 and Mr. Talapatra, learned counsel for the petitioners in W.P.(C)
No.607/99. Also heard Mr. BR Bhattacharjee learned Advocate General for the
respondents in W.P(C) No.582/99 and Mr. S Deb, learned senior counsel for the
respondents in both the cases.
2. Since the two writ petitioners involves common question of facts and law,
hence, they are disposed of together.
3. The Tripura state Public Service Commission (herein after referred to as
‘Commission’) on the requisition sent by the state government on 22-05-98 issued an
advertisement for recruitment of 25 posts of Medical Officers (Homoeo) under the
Health and Family welfare Department of State of Tripura. The last date fixed receipt
of the application was 23-06-98 for the said selection. The petitioners, respondents
along with other applicants participated in the selection and the result was declared on
759
15th October 1999. The petitioners have not been found successful and the respondents
have been selected. The challenge of the petitioners is that the respondents did not
have the requisite qualification for the post and as such their selection is illegal and
contrary to service rules, that is one of questions for determination in the present two
writ petitions. Further, in writ petition No.607/99 the grievance of the petitioner is that
as repeatedly laid down by the Hon’ble Supreme Court not more than 12 ½ % marks
in the viva-voce can be fixed, the direction has been violated by the commission and
as such the whole selection process is vitiated and illegal.
4. According to the petitioners under the recruitment services rules vide
Notification No.1(1) HFP/73 dated 12th January, 1978, in force the essential
qualification is an under.:-
“ 7. B.M.S. (Homeo) D.H.M., D.H.S, D.M.S.(Homoeopathy) ,BMBS, or MHMS or GHMS degree (Agra) or MBS(Hom) degree (calcatta) or equivalent.”
The respondents did not possess any of the aforesaid degree/diplomas, on the other
hand, possessed diploma DHMS (Diploma in Homoeopathic Medicine and surgery),
which was not recognized by the central council of Homoeopathy. Before the last date
i.e., on 23-06-98 fixed for receipt of the application forms, under section 13 of the
Homoeopathy central council 1973(herein after referred to as the council Act 1973)
the said diploma had not been recognized, but subsequently has been recognized vide
Notification dated 21st December, 1998. The diploma of the respondents not being
recognized, the respondents were not eligible to participate in the selection and as such
their selection was illegal. It is settled law that the eligibility /essential qualifications
of a participant in a certain selection has to be determined with reference to the last
date fixed for receipt of the application for selection (Vide 1995 Supp(4) S.C.C. 706
Harpal Kaur Chahal (Smt) Vs. Director Punjab Instructions Punjab and others ,
1994(2) SLR SC 59 U.P Public Service Commission Vs. Alpana 1993(1) SLR SC 544
Mrs. Rekha Chaturvedi Vs. University of Rajasthan and others and Mills Dougals
Michael Vs. Union of India , AIR 1996 S.C. 1905)
5. “Recognised medical qualification “ means any of the medical qualifications
in Homoeopathy, included in the second or the third schedule (vide Section 2(g) of the
Council Act 1973). It is nor in dispute that the respondents have passed the diploma
(DHMS) which was not mentioned in the second or the third schedule of the Council
Act, 1973 before 21st December 1998, But the respondents degree DHMS has been
included in Second schedule to the act by amendment notified in official Gazette dated
21st December 1998. In the remark column, it is mentioned “from 1990 onwards”. The
760
effect is that the respondents‘ diploma DHMS stands recognized from the year 1990
onwards. Much argument has been advanced by the learned counsel for the petitioners
that since section 13 of the Council Act, 1973 is not still in force in Tripura, any
amendment in the second and third schedule of the council act, 1973 would not confer
any right on the respondent. About the argument of the learned counsel for the
petitioners. It may be observed that section 13 of the council act 1973 only lays down
the procedure for recognition of medical qualification granted by certain Medical
Institutions in India.
6. Section 13 of the Council Act 1973 reads as follows:-
“13. Recognition of medical qualifications granted by certain
medical institutions in India.- (1) The medical qualifications granted by any university, Board or other medical institution in India which ate included in the Second Schedule shall be recognized medical qualifications for the purposes of this Act. 2. Any university, Board or other medical institutions in India which grants a medical qualifications not included in the second schedule may apply to the central government to have any such qualification recognized and the central council, may, by not notification in the official gazette, amend the second scheduled so as to include such qualification there in and any such notification may also direct that an entry shall be made in the last column of the second schedule against such medical qualifications only when granted after a specified date.’
7. Sub-Sections 1 of section 13lays down that the medical qualification granted
by any university Board or other medical institutions in India which are included in
the second schedule shall be recognised medical qualifications. Sub- Section 2 of the
act enables University Board or other medical institutions in India. Which grants
medical qualification not included in the second schedule to apply to the central
government for reorganization of the said qualification and the central government
after consultation with the Homoeopathy central council may amend the second
schedule and include the said qualification therein. If section 13 of the council Act was
not in force in the state of Tripura its only affect is that Medical Institutions, Board
etc., in the state of Tripura could not apply for the recognition of the degree /diploma
granted by them under section 13 of the Act. The Words used in sub-Section 2are “any
University” Board or other Medical Institutions in India” the section 13 does not put
embargo on the right of university Board or other Medical Institution situates in other
states for taking the steps for recognition of the degree and inclusion thereof in the
second schedule of the Act. So, the argument of the learned counsel for the petitioner
that since section 13 of the Act was not in force in the state of Tripura, subsequent
inclusion of the degree/diploma in the second schedule of the Act on the initiative of
761
any university, Board or other Medical institution situates out the state of Tripura
would not ensure for the benefit of the selection to be held in the state of Tripura has
no force.
8. The present case is not such where respondents did not possess the essential
qualification viz. degree/diploma before the impugned selection. As transpired during
the course of argument, the respondent’s diploma was recognized before the screening
test and viva-voce test were conducted by the Commission on the basis of which the
result was declared. Even advertisement issued by the Commission provides for
degree/diploma in Homoeopathy science from any recognised Institution in India. At
the time of argument, learned Advocate General urged that the impugned selection
was made on the basis of draft service rules, in which essential qualification
contemplated is “degree/diploma in Homoeopathy science from any recognized
Institutions in India.” No such averment was made earlier even in the counter
affidavit filed on behalf of the state-respondent. A controversy was raised whether the
draft rules could be enforced in the presence of existing recruitment rules. The learned
Advocate General argued that the earlier existing rules relied upon by the petitioners
relate to non-gazetted post, while the impugned selection is for gazetted post, which
has been controverted by the learned counsel appearing for the petitioners. In view of
the finding recorded above that the respondents did possess the essential qualification
for the impugned selection it is not necessary to enter into the controversy whether the
present selection was on the basis of the draft rules.
9. Mr. S Talapatra, learned counsel appearing for the petitioners argued that in
the present selection the ceiling of 12 ½% marks for the viva-voce fixed by the
Hon’ble Supreme Court has been violated. The learned counsel relied on decision of
the Hon’ble Supreme court in Ashok Kumar yadav and others Vs State of Haryana
and others AIR 1987 S.C. 454 and of Gujarat High court in L.V. Ashra Vs Gujarat
Public Service Commission Ahamedabad and another, 1985(2) SLR 83 As has been
stated by the Commission in counter affidavit, in the present selection short listing of
the candidate was done, as 322 eligible candidates had applied and it was not possible
for the commission to take interview all the applicants. The screening test was done
and on the basis of which 79 candidates were called for interview. The selection was
based entirely on viva-voce. Such a short listing /screening test is permissible where
the number of applicants is large, as in the present case. The ceiling of 12 ½ % marks
for the viva-voce examination is based both on written examination and viva-voce and
not to those cases where the selection is based on viva-voce alone. The present
762
selection, therefore, can not be said to be in violation of the ceiling of 12 ½ % marks
for interview fixed by the Hon’ble Supreme Court and can not be said to be legal.
10. In the result both the writ petition Nos. W.P. ( C) 582/99 and W.P. ( C) 607/99
have no force and are here by dismissed costs on parties.
***
763
Writ Appeal No.52/2001 D.D.5.12.2001
The Hon'ble Mr. Justice P.K.Sarkar
AND The Hon'ble Mr. Justice H.K.K.Singh
Sri. Subrata Majumdar – Appellant Vs. The State of triputa & Ors. – Responents
Qualification/experience prescribed for the post – Whether fulfilled by the selected candidate?
Yes Recruitment to 29 posts of Panchayat Officers in Panchayat Department, Government of Tripura – Qualification prescribed:- (i) Degree of a recognized University (ii) Training in Rural Development and extension service – PSC prepared a list of 92 candidates out of 942 applicants who fulfilled the qualification – As the P.S.C. entertained doubt as to the experience claimed by the 92 candidates sent the list to the Government for clarification – Government said that 90 candidates satisfy the experience prescribed –PSC selected 9 candidates after interview - Some unsuccessful candidate filed Writ Petition alleging that selected candidate did not fulfill the qualification and experience – Single Judge holding that Government relaxed the qualification which was impermissible quashed the list. In Appeal the Division Bench set aside the order of Single Judge and held that the selected candidates fulfill the qualification. Held – If a candidate takes a calculated chance and appears at the interview then only because the result of the interview is not palatable to him he cannot turn round and subsequently contend that the process of interview was unfair or the selection was not proper or the selected candidates do not fulfill the required qualification. Case referred:- AIR 1986 SC 1043 Omprakash Shukla v. Akhilesh Kumar Shukla
JUDGMENT .
These groups of appeals are directed against the common judgement and order
passed by the learned single Judge on 12.4.2001 in civil Rule N0.137/197 and Civil
Rule N0.478/1998. Since in these appeals common question of facts and law are
involved, we propose to dispose of all these appeals by this common Judgement and
order.
2. In these appeals, appellants were selected by the Tripura Public Service
Commission, here in after referred to as ' Commission', for appointment as Panchayat
Raj Department, Government of Tripura pursuant to an advertisement issued by the
Commission on 1.11.95 The advertisement indicated that the candidates possessing
764
the following qualifications and experience are eligible for appointment to the said
post.
Qualification: Essential :
i) Degree of a recognized University
ii) Training in Rural Development and extension service.
The qualification prescribed by the Commission in its advertisement dated 1.11.95 is
the same as that indicated in the Recruitment Rules for the post of Panchayat Officer
issued by the notification of the Govt. of Tripura in the panchayat Department vide
No. F.1. (11-11) –ESTT/PR/87/8413-48 dated 27.11.93. The Commission received
914 applications and after scrutiny. The Commission was of the view that two
candidates satisfy the requisite qualification as prescribed in the advertisement and as
regards 90(Ninety) candidates, Commission observed that those ninety candidates
have training and experience as prescribed in the Recruitment Rules as well as in the
advertisement. But they have a doubt whether those qualifications are strictly in
accordance with qualifications prescribed in the Recruitment Rules as well as in the
advertisement. Consequently, the Commission made a reference to the Government in
respect of those ninety candidates seeking the views of the Panchayet Department in
respect of the eligibility of the said ninety candidates who were found to have some
experience in rural development and extension service and according to the
Commission, those training and experience did not strictly satisfy the requirement of
the training and experience prescribed in the advertisement. The Govt. by
communication under No. F. 1(11-11)-ESTT/PR/87/13527 dated 26.12.96 informed
that the Govt. had examined the cases of 90 candidates referred by the Commission
and the Govt. after perusing the papers of the aforesaid 90 candidates were satisfied
and decided that those 90 candidates fulfilled the eligibility criteria as prescribed in the
Recruitment Rules as well as in the advertisement and therefore, the Govt. requested
the Commission to arrange for interview of the said ninety candidates for the said post
of Panchayat Officer. Accordingly, the Commission took interview of all the 92
candidates and in interview, apart from the Chairman and Members of the
Commission, the Director of Panchayath was also involved as an expert advisor-cum-
departmental representative. The interview was taken from 15.1.1997 to 24.1.1997
out of the 92 candidates 72 candidates reported for interview. The Commission
interviewed 69 candidates and three general category candidates were not interviewed
they failed to produce no objection certificate from their present employers. After
taking interview of the candidates, the Commission found nine candidates as suitable
for appointment to the post of Panchayat Officer under Panchayat Raj Department and
prepared the list of selected candidates in order of merit. The Commission also kept a
reserve list of five candidates according to merit. Two writ petitioners-respondents in
765
these appeals were also amongst the ninety candidates who were screened for
interview for the post of panchayath officer and they also appeared before the
Interview Board, but they failed to qualify in the interview and were not selected by
the Commission. Having failed to get selection for the post of Panchayat Officer, tow
writ petitioners namely Shri Sankar Chowhan and Shri Hemkanti Nath filed tow writ
petitions which were registered as Civ. Rule No.137 of 1997 and Civil Rule No. 478
of 1998.
3. The writ petitioners challenged the selection of the nine candidates of the
ground, that selected candidates did not possess the qualification and experience as
prescribed in the recruitment Rules mainly the selected candidates did not have
appropriate training in the field of rural development and extension service.
4. After selection by the Commission, the said nine candidates recommended by
the Commission were appointed by the Govt. to the post of Panchayat Officer in the
year 1997. Learned single Judge who dealt with these writ petitions quashed the
appointment of 8 (eight) candidates, but he did not interfere with the selection and
appointment of the respondent Smt. Sanchita Roy who was found to be eligible by the
learned Single Judge. The reason for quashing the appointment of the eight selected
candidates by the learned Single Judge is that they do not fulfill the requisite
qualification as prescribed in the Recruitment Rules or in the advertisement. There is
no doubt about the essential Qualification prescribed in item (i) i.e. Degree of a
recognized University, but so far the qualification prescribed in item (ii), the learned
single Judge held that eight selected candidates did not have training in rural
development and extension service. Accordingly, learned Single Judge quashed the
appointment of eight candidates who were appointed by the government as panchayat
Officer on the basis of the recommendation by the Commission.
5. Mr. B.Das learned Sr. Counsel appearing on behalf of some appellants, Mr,
S.Talapatra, learned Counsel appearing on behalf of some of the appellants, Dr, H.K,
Bhattacharjee, learned representing one appellant as well as Mr, U.B.Shah, learned
Govt, Advocate for the state of Tripura and Mr, S.Deb, learned senior counsel
appearing on behalf of the Commission have resisted the contention of the writ
petitioners - respondents and have submitted that there was nothing wrong with the
selection process and the marks given in the viva voice test and that the writ petitions
are devoid of merit and is appeals should be allowed.
766
6. Mr. M.K. Bhowmik, learned senior Counsel appearing on behalf of the
Petitioner respondents defended the judgement of the learned single Judge by
arguing that the selected candidates did not fulfill the second essential Qualification
regarding training and experience in rural development and extension service and
therefore, learned Single Judge had rightly quashed the appointment of eight selected
candidates.
7. It is an admitted fact that the Commission has found two candidates clearly
eligible and as regards other ninety candidates including the writ petitioners the
Commission had some doubt whether these 90-candidates fulfilled the requisite
qualification prescribed in the Recruitment Rules. The matter has been clarified by
the Government and the Govt. communicated the decision that those ninety candidates
fulfilled the qualification regarding training in rural development and extension
service, and, therefore, they were clearly eligible for the post of panchayat officer and
accordingly, requested the commission to take interview of those 90 candidates. It
may be mentioned here that two petitioners who have filled writ petition were amongst
the ninety candidates whose cases were also considered by Govt. and found to be
eligible for post of Panchayat Officer and they were also called for interview and they
appeared before the Commission, but they could not secure the selection and thus they
failed in the interview.
8. The qualification prescribed for the post of panchayat officer is(1) Degree of a
recognized University and with regard to this qualification, there is no controversy.
Second qualification is (ii) Training in Rural Development and extension service.
Now regarding training and experience, the Commission has made a reference with
the govt. and Govt. after perusing the documents of the 90 candidates were of the view
that they satisfied the requirement of training and experience and accordingly, the
Govt. requested the Commission to take their interview. Where in particular
candidates fulfill the qualification as prescribed in the Recruitment Rules framed by
the Govt. we are of the view that the interpretation given by the Government should be
taken as conclusive. We donot find anything that so far training in rural development
and extension service is concerned, a candidate must have a degree/a diploma in Rural
development and extension service.
9. We have examined ninety application forms along with supporting documents
and we have carefully examined the nine candidates who were selected by the
Commission. The Commission has produced all the papers in sealed cover. On
perusal of the papers and documents of the nine selected candidates, we have no
767
hesitation to hold that all these 9 selected candidates have requisite training in rural
development and extension service.
10. Mr. Deb learned senior Counsel appearing on behalf of the Commission
submits that the Commission was under impression that a degree or diploma will be
required as regards Training in Rural Development and extension service. The
Commission have viewed that Smt. Sanchita Roy who has been selected by the
Commission for the post of Panchayat officer is a must degree holder in the subject of
rural development from "Vishwa Bharathi" and Gopal Ch. Majumder who appeared in
the interview, but failed to get selection for the post has diploma in social work (Social
welfare) from Calcutta University. Mr. Deb. Accordingly submits that on basis of the
diploma and post graduate degree of the aforesaid two candidates, the commission was
initially of the view that they strictly fulfill the requisite qualification prescribed in
item No (ii) of the essential qualification. Mr. Deb very fairly submits that the
Commission omitted to consider for complying with the requirement of the second
qualification that no degree or diploma is necessary and that only a training on the
subject of rural development and extension service is sufficient compliance with the
second requirement of the qualification prescribed in the recruitment Rules as well
as in the advertisement.
11. On a plain reading of the qualification prescribed in the recruitment Rules and
in the advertisement. We are clearly of the view that training in rural development and
extension service does not necessarily mean that a candidate must be a holder of
degree or diploma in the said subject. Training in rural development and extension
service for a reasonable period under a competent authority is a sufficient compliance
of the requirement of the said qualification. After going through the certificates of the
selected candidates, we have no hesitation that all these nine candidates have requisite
training in rural development and extension service. We have also examined the
papers of the writ petitioners. They were also summoned for interview by the
Commission and in fact, out of the 90 candidates, the petitioners are the two
candidates who appeared in the interview but failed to get selection and they also
satisfied the second requirement as prescribed in the Recruitment Rules.
12. Before dealing with this context, we must keep in view the salient fact that the
writ petitioners as well as contesting successful candidates, appellants herein, were all
found eligible to be called for oral interview. Up-to this stage, there is no dispute
between the parties. The writ petitioners - respondents also appeared at the oral
interview conducted by the Commission who interviewed the writ petitioners as well
768
as respondents- appellants concerned. Thus the petitioners took a chance to get
themselves selected at the said oral interview. Only because they did not find
themselves to have emerged successful as a result of their performance in the oral
interview, they have filled these writ petitions. It is now well settled by the apex
Court that if a candidate takes a calculated chance and appears at the interview then,
only because the result of the interview is not palatable to him, he cannot turn down
and subsequently content that the process of interview was unfair or the selection was
not proper or the selected candidates do not fulfill the required qualification. In the
case of Om Prakash Shukla ver/Akilesh Kumar Shukla, AIR 1986 SC 1043, the Apex
Court has clearly laid down the law by a Bench of three learned Judge of the Apex
Court that when the petitioner appeared at the examination without protest and when
he found that he would not succeed in the examination he filed a petition challenging
the said examination, the Apex Court held, the High Court should not have granted
any relief to such a petitioner. Therefore, the result of the interview test on merit
cannot be successfully challenged by a candidate who takes a chance to get selected at
the said interview and who ultimately find himself to be unsuccessful. It is also to be
kept in view that in this petition or in the appeals we cannot sit as a court of Appeal
and try to reassess the relative merits of the candidates concerned who had been
assessed at the oral interview nor can the writ petitioner successfully urged before us
that they were given a l marks though their performance was better. They also cannot
challenge the qualification of the selected candidates as the qualification of the 90
candidates have been examined by the Govt. And Govt. has clearly of the view that
they fulfilled the required training and experience so far second conditions of the
qualification is concerned. It is for the Interview Committee which amongst others
consisted of the Chairman and the Member of the Commission and the Director of
Panchayat, a departmental representative to judge the relative merits of the candidates
who were orally interviewed in the light of the guidelines laid down by the relevant
rules governing such interviews. Therefore, assessment on merit has made by such an
expert committee cannot be brought in challenge only on the ground that the
candidates do not fulfill the requisite qualification or the assessment was not proper or
justified and that would be the function of the appellate body and we are certainly not
acting as a court of appeal over the assessment made by the Government and
Commission. On the aforesaid ground alone the writ petitions are liable to be
dismissed.
13. It is difficult to appreciate the contention of Mr. M.K. Bhowmik, learned
Counsel appearing on behalf of the petitioners respondent that the selected candidates
do not fulfill the requisite qualification. It appears that the Commission had initial
769
some doubt about the qualification of 90 candidates for which a reference has been
made to the Government and the Govt. after considering the papers and documents of
the ninety candidates referred by the commission was clearly of the view that those 90
candidates fulfilled the requisite qualifications as prescribed in the Recruitment Rules
and accordingly requested the Commission to take interview of those candidates.
Therefore, the contention of Mr. Bhowmik is devoid of any merit. When the Govt. is
satisfied about the essential qualification of the 90 candidates referred by the
Commission, it cannot be urged with any emphasis that those candidates are not
eligible to complete for the said post. Mr. Bhowmik very fairly submits that if any of
the selected candidates have got requisite certificate regarding training in rural
development and extension service, he does not oppose the selection and appointment
of such candidate. A part from satisfaction of the Govt. regarding training and
experience in rural development and extension service, we have also gone through the
certificate enclosed with the applications by the respective selected candidates and
after going through the certificate, we also clearly of the view that these selected
candidates have requisite training in rural development and extension service, and
therefore, we are completely in agreement with the Govt. that these selected
candidates do fulfill the requisite qualification for appointment to the post of
Panchayath officer.
14. We have gone through the judgment passed by the learned single judge. It
appears that the learned single judge took a wrong view that the recruitment rules have
been relaxed so as to enable the ninety candidates appear before the selection Board
and he has also observed that unless the recruitment rules is amended by the
Government, no relaxation can be permitted by the Govt. and accordingly, the learned
single judge held that the candidates did not fulfill the requisite qualification.
15. After going through the papers and documents we are of the view that in the
facts and circumstances of the case, the Govt. did not resort to relaxation of
qualification. The Govt. did not resort to relaxation of qualification. The Govt.'s
decision was that the 90 candidates referred by the Commission fulfilled the requisite
qualification both degree from a recognized university as well as training in rural
development and extension service. Therefore, the observation of the learned single
judge made against the Commission in para 12 of the judgment is without any
substance. We have also examined the merit list prepared by the Commission
produced Mr. Deb on behalf of the Commission and we find no illegality in the marks
allotted to the candidates who appeared in the interview test.
770
16. The observation of the learned single Judge is that the interview was taken on
different dates. Therefore, the Chairman and the Member of the Commission should
have signed the papers after each date of interview. In this respect, it must not be
over-looked that the Commission has submitted final selection list after taking
interview on different dates and final selection list indicating the marks were signed by
the Chairman and the Member of the Commission on 24.1-1997 and we do not find
any illegality in such final list. Simply because it was signed on 24-01-1997. There is
also no challenge that any favour has been shown to any particular candidate by the
writ petitioners.
17. Having regard to the facts and circumstances of the case and after hearing the
learned counsel of all the parties and after going through the papers and documents we
are clearly of the view that there is no illegality in the selection of the nine candidates
by the Commission and their consequent appointments to the post of panchayat officer
by the Govt. Accordingly, we set aside the order of the learned
Single Judge passed on 12.4.2001 in Civ. Rule 137 of 1997 and Civ.Rule 478 of 1998
and dismiss the writ petitions. Appeals are therefore allowed. However, in the facts
and circumstances of the case we made no order as to costs.
***
771
UTTAR PRADESH PUBLIC SERVICE COMMISSION
772
ALLAHABAD HIGH COURT Civil Misc. Writ Petition No.2020 of 1995
D.D. 19.10.1995
The Hon'ble Mr. Justice R.A.Sharma The Hon'ble Mr. Justice I.M.Quddusi
Sushil Chandra Srivastava – Petitioner Versus State of U.P. and Others – Respondents Regulation 3(a) and (b) Regulation 6 of Uttar Pradesh Public Service Commission (Limitation of Functions) (Thirteenth Amendment) Regulation 1994, made under proviso to Clause 3 of Article 320 of the Constitution dispensing with the consultation with the Commission on the matter relating to appointment by promotion to State Civil Service and post and also as regards the appointment by Direct Recruitment to the State Civil Service and post which has been reduced/curtailed by the said amendment – Validity challenged. Writ Petitions are allowed and the above provisions are quashed as ultra vires. Cases referred: 1. AIR 1957 SC 912 State of U.P. Vs. Manbodhan Lal 2. AIR 1961 SC 1596 S.B.K. Oil Mills Vs. Subhas Chandra Yograj Sinha 3. AIR 1966 SC 1172 R.S.Swamiji Vs. State of Mysore 4. AIR 1989 SC 155 Madhu Gopal Vs. VI Additional District Judge 5. AIR 1991 SC 101 Delhi Transport Corporation Vs.D.T.C. Mazdoor Congress
ORDER
Petitioner in writ petition no 2020 of 1995 is an advocate of this court.
Petitioner no. 1 in writ petition no. 3587 of 1995 is registered Association of the
employees and officers of U. P Public Service Commission, Allahabad (herein after
referred to as the Commission), of which petitioner no 2 is the President. They have
filed these writ petitions challenging the thirteenth amendment dated September 7,
1994 of the Uttar Pradesh Public Service Commission (Limitation of Function)
Regulation, 1954 made under the proviso to clause (3) of the article 320 of the
Constitution dispensing with the consultation with the Commission on the matters
relating to appointment by promotion to the State Civil service and post and the
principle to be followed in making such appointment. Consultation with the
Commission as regards the appointment by direct recruitment to the State Civil service
and post has also been reduced/curtailed substantially.
Both the Commission and the State government have filed their counter
affidavit and the petitioner has filed rejoinder-affidavit in reply thereto. We have heard
Sri Ashok Bhushan, learned counsel for the petitioner, Sri Rakesh Dwivadi, learned
773
Additional Advocate General and Sri. V. M Sri learned counsel for the Commission.
We have also heard learned counsel for the interveners.
Learned counsel for the petitioner has challenged the impugned regulations on
2 grounds, viz (i) they are outside the purview of the proviso to clause (3) of Article
320 of the Constitution and amount to fraud on the Constitution; and (ii) they are
unreasonable arbitrary and are violative of Article 14 of the Constitution. Learned
Additional Advocate General apart from disputing the above contentions, has raised
preliminary objections about the maintainability of the writ petitions at the instance of
the petitioners.
Before dealing with the main issue it is necessary to deal with the preliminary
objection at the thresh hold. Petitioner in writ petition no 2020 of 1995 is a practicing
advocate of this Court. Filed this writ petition as a public interest petition. His
grievance is that the regulations have been issued in violation of the constitutional
obligations and they have caused injury to the public interest. He says that he being an
advocate practising before this Court is vitally interested and if the impugned
regulations are implemented the commission will become a non entity, and the State
government will be free to make appointment by promotion or even by direct
recruitment to any of the post and the service in the state without regard to merit,
which will ultimately affect the rule as well as law and order in the state. In writ
petition no 3587 of 1995 the petitioner no 1 is Association of the employees and
officers of the commission. Its grievance is that in view of the impugned regulations
the working of the commission will be reduced, which may lead to retirement of some
of its employees.
It is true that a person who files the writ petition under Article 226 of the
Constitution must be a person aggrieved by the action or the order impugned in the
writ petition. This is the rule which has to be followed in a private litigation which can
only be maintained at the instance of the aggrieved person. Such a rule has, however,
been relaxed in the public interest litigation by a series of decisions of the Supreme
Court according to which any person acting bonafide and having sufficient interest for
initiating such an action for the purpose of redressal of the public wrong or the public
injury, can file the writ petition. Reference, in this connection may be made to Janta
Dal Vs. H. C chaudhary (AIR 1993 SC 892); D. C. Wadhwa vs. State of U. P. (AIR
1987 SC 579) and Bangalore Medical Trust versus B. S Muddappa (AIR 1991 Sc
1902). A practising advocate has sufficient interest to maintain a writ petition by way
of public interest litigation, if by the impugned action the public interest of public
774
good is really being affected. The fact that the practising advocate has such a right of
public interest litigation for the redressal of grievance relating to the public interest has
been recognized by the Supreme Court in S. P.Gupta versus President of India (AIR
1982 SC 149). Recently in Jai Shanker Prasad versus State of Bihar (AIR 1993 SC
1906) a writ petition at the instance of an advocate before the High Court and appeal
arising there from before the Supreme Court, were entertained. The preliminary
objection regarding maintainability of the writ petition no 2020 of 1995 therefore, to
be rejected.
The grievance of the petitioners in writ petition no. 3587 of 1995 is purely
speculative. Their case is that if the impugned amendment is implemented there will
be hardly any work with the Commission on account of which there is likelihood of
retrenchment of the Commission’s employees. Such an interest is too remote to be
given judicial recognition. That apart, Government in para 3 of its counter affidavit
has stated that there is no intention or proposal of the Government to abolish any post
created in the Commission. Apprehension of the petitioner regarding retrenchment of
the employees of the Commission has thus been denied. The interest of the petitioner
being purely speculative without any reasonable basis, this writ petition is
misconceived and is not maintainable.
Executive power of the state is discharged by the Council of ministers aided
and advised by the civil servants. It is function of the ministers to lay down the policy
and it is the duty of the Civil servants to carry it out. Civil servants do not merely carry
out the policy laid down by the ministers but they also administer the law by
exercising various power assigned to them by the legislative enactments and the rules
and regulations framed there under. They also exercise executive power of the state
for and on behalf of the Government. Functions of the civil servants seeing the
importance of the civil servants in the democratic set up our constitution makers did
not accept the system of committed civil servants of the government. They accepted
the system consisting of the politically neutral, fearless, efficient civil servants for
implementing the government policy and for running the administration. In order to
achieve this object, provisions have been made in the constitution for the appointment
of the Government servants selected by the Commission, which is an independent and
recommended body consisting of experts. Chapter II of part XIV of the Constitution
deals with the Public Service Commission. Article 315 provides for the separate
Public Service Commission both at the Center and in the States. Functions of the
Commission have been specified in Article 320, according to which one of the
important functions is to conduct the examinations for the appointments to the civil
775
services and post on merit. Article 320 (3) which require the consultation with the
Commission on the matters specified therein, is reproduced below:
“320 (3). The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted : (a) On all matters relating to methods of recruitment to civil services and for civil posts (b) On the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of the candidates for such appointments, promotions or transfers.
(c) On all disciplinary matters affecting a person serving under the government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters;
(d) On any claim or in respect of a person who is serving or has served under the Government of India or the government of a state or under the Govt of India or under the Government of an Indian State, in a civil capacity, that any acts incurred by him in defending legal proceedings instituted against him in respect of acts done or purporting to be done in the execution of his duty should be paid or, as the case may be, out of the Consolidated Fund of the State;
(e) On any claim for the award of a pension in respect of injuries sustained by a person while serving under the Government of India or the government of a State or under the Crown in India or under the Government of an Indian state, in a civil capacity, and any question as to he amount of any such award, and it shall be the duty of a Public Service Commission to advise on any matter which the President, or as the case may be, the governor of the State, may refer to them:
Provided that the President as respects the all-India services and also as respects other services and posts in connection with the affairs of the Union, and the Governor, as respects other services and posts in connection with the affairs of the state, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted”
Although clause (3) of Article 320 requires consultation by the Government with the
Commission on the matters specified therein, but proviso appended thereto has
conferred the power on the government to take certain matters which may be specified
by means of regulations outside the purview of the Commission and in such matters
consultation with it is not required. Government is thus free to specify any matter set
out in sub clauses (a) to (e) of clause (3) of Article 320, so as to exclude the necessity
of the consultation with the Commission.
776
The government of Uttar Pradesh has framed regulations in the exercise of the
power conferred on it by proviso to Article 320 (3) of the Constitution which are
known as The Uttar Pradesh Public Service Commission (Limitation of Functions)
Regulations, 1954 (herein after referred to as the regulations). These regulations have
already been amended 12 times by the Government taking various matters out of the
purview of the Commission. By 13th amendment, which has been impugned in this
writ petition, the matters relating to the suitability of the candidates in making
promotion to the state services and post and the principle to be followed in such, cases
have been taken out of the purview of the Commission. By the same amendment
consultation with the Commission on matter relating to direct appointment to the State
service and post have also been substantially curtailed/reduced. The impugned
regulations, as introduced by the 13th amendment, are as under :
“3. It shall not be necessary for the Commission to be consulted on matters relating to the methods of the recruitment to the civil services and posts, or the principles to be followed in making appointments, through direct recruitment to such services and posts, or the suitability of the candidates for such appointments, in the following cases :
(a) when the appointing authority in respect of the service or posts
concerned is an authority other than the Governor, unless in any particular case, government have directed may after consultation with the Commission direct that the service or post in question shall be within the purview of the Commission.
Note: the services and posts mentioned in the Schedule appended to the U. P Public Service Commission (Limitation of the Functions) Regulations, 1941 as in force before the date of this notification, shall continue to remain under the purview of the Commission until a direction to the contrary is issued by the Government, after consultation with the Commission
(b) When the appointing authority in respect of the service or the post concerned is the Governor, but the Governor for any reason directs, after the consultation with the Commission, that the service or post in question shall be outside the purview of the Commission.
(c) When the appointing authority in respect of the service or the post
concerned is the Governor or is the authority other than the Governor and the person concerned being directly appointed on adhoc basis on or before the date notified by Government possessed requisite qualifications for regular appointment at the time of such adhoc appointment and has completed three years continuous service on or after the said date.
6. Promotion : It shall not be necessary to consult the Commission :
(a) on the suitability of the candidates in making promotion to a post, not with standing the fact that certain percentage of such post is within the purview of the Commission.
(b) On the principles to be followed in making promotion to a
post where :
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(i) promotion is the only source (ii) direct recruitment is one of the sources of
recruitment and the same is not made through the Commission.
Explanation : The Provisions of this regulation shall also apply to requisition pending with the Commission on the date of Commencement of the Uttar Pradesh Public Service Commission (Limitation of Functions) (Thirteenth Amendment) Regulation 1994 in which selection for the promotion has not been finalized by the Commission”
By the impugned Regulation necessity of consultation with Commission on the
matters relating suitability of the candidates in making promotions to the Civil service
and post as well as principle to be followed in making such promotions, has been
completely dispensed with. It is now no mere necessary for the Government to consult
the Commission for making appointment by promotions to any State service or post.
Government is also not required to consult the Commission on matters relating to
recruitment to civil service or principles to be followed in making such appointments
in all those cases where the governor is not the appointing authority. Even regarding
these services where the appointing authority is the governor, consultation with the
Commission can be dispensed with by the Governor without formulating any further
regulation under proviso to Clause (3) of Article 320 of the Constitution. Thus
consultation with the Commission on matters relating to the direct recruitment has
been completely excluded, when the appointing authority is an authority other than the
governor and in those services where the Governor is the appointing authority
consultation with the commission depends on the will of the Governor, which means
the State Government. As mentioned above appointments by promotion have been
completely taken out of the purview of the Commission. Thus the State Government is
free to make appointment to the State services and the post, both by direct recruitment
as well as by promotion, without consulting the Commission. Commission thus has
become a non entity, in the matter of appointment and the promotion to the State
service and post. All this has been done by the Government in exercise of the power
under the proviso to clause (3) of Article 320
Law with regard to proviso is well settled by the decisions of the court.
Supreme court in S. B. K. Oil Mills Vs Subhash Chandra Yograj Sinha (AIR 1961 SC
1596) has, in this connection laid down as under :
“The law with regard to provisos is well settled and well understood. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily a proviso is not interpreted as stating a general rule.”
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Proviso which creates an exception cannot be construed so as to nullify the enactment
to which it is added, because it does not contain a general rule and what it contains is
an exception to the general rule. The exception cannot swallow up the general rule.
Reference in this connection may also be made to R. S Swamiji vs State of Mysore
(AIR 1966 SC 1172) wherein Macbeth vs Ashely (1874) 2 SC and Div 352, which has
laid down that an exception cannot swallow general rule, was referred to. In Madhu
Gopal vs. VI Additional district Judge (AIR 1989 SC 155), while considering the
effect of the proviso it has been laid down as under :
“In any event, it is a well settled principle of construction that unless clearly indicated, a proviso would not take away substantial rights given by section or sub-section.”
It was accordingly held therein that the proviso cannot defeat and destroy that which is
contained in the section or sub section to which it is added, unless intention of the
legislature is clear.
Although Government is the appointing authority of all civil servants, but the
constitution makers by enacting Article 320 require the selection of the Government
servants by the Commission, which is the independent and the autonomous body, free
from control of the Government. Proviso to Clause (3) to Article 320 was added so as
to enable the Government to make such appointments without consultation with the
Commission is exceptional cases, where such consultation is not found expedient. It
was never intended that the general rule which is contained in the Clauses (1) and (3)
of the Article 320 would be nullified by exercising the power under the proviso to
clause (3). By the impugned amendment, exception which is contained in proviso to
clause (3) of Article 320 has been converted into general rule and the general rule
which is contained clauses 1 and 3 of said Article, has been nullified and given a
good-bye. Such a situation is not contemplated by Article 320. Such a power therefore
cannot be exercised under the said proviso.
It is true that Clause (3) of Article 320 has been held to be directory by the
Supreme Court. But that does not give any right to the Government to ignore the
Commission altogether. In State of U. P. versus Manbodhan Lal (AIR 1957 SC 912)
Supreme Court while declaring Article 320 (3) (c) as directory, has laid down as
under:
“If it had been intended by the makers of the Constitution that consultation with the Commission should be mandatory, the proviso would not have been there at all in the terms in which it stands. That does not amount to saying that it is open to the Executive Government, completely to ignore the existence of the Commission to pick and choose cases in which it may or may not be consulted.”
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In the instant case the State Government has, by the impugned amendment, ignored
the Commission in the matter of appointment to the State Service. What has been
given by clauses (1) and (3) of Article 320, has been taken away by the Government,
by exercising the power under the proviso to Clause (C). Such a power is not
conferred by the said proviso.
A Departmental Committee consisting of the Government servants for making
selection for appointment to the Civil services, either by direct recruitment or by
promotion, is no substitute of the Commission. The ground realities of the present day
cannot be lost sight of. Mechanism through which honest and the efficient persons are
victimized by high ups are well known. Reference in this connection may be made to a
decision of the Supreme Court in Delhi Transport Corporation versus D.T.C Mazdoor
Congress (AIR 1991 SC 101) wherein in paragraphs 223 and 243 it was laid down as
under :
“There is need to minimise the scope of the arbitrary use of power in all walks of life. It is inadvisable to depend on the good sense of the individuals, however high-placed they may be. It is all the more important and undesirable to expose the precious rights like the rights of life, liberty and property to the vagaries of the individual whims and fancies. It is trite to say that individuals are not and do not become wise because they occupy high seats of power, and good sense, circumspection and fairness does not go with the posts, however high they may be. There is only a complaisant presumption that those who occupy high posts have a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does not warrant it. In particular, in a society pledged to uphold the rule of law, it would be both unwise and impolitic to leave any aspect of its life to be governed by discretion when it can conveniently and easily be covered by the rule of law. xxx xxx xxx xxx xxx
The right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole source of income, the right to work becomes as much fundamental. Fundamental rights can ill afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them. xxx xxx xxx xxx xxx The prevailing social conditions and actualities of life are to be taken into account to adjudging whether the impugned legislation would subserve the purpose of the society. The arbitrary, unbridled and naked power of wide discretion to dismiss a permanent employee without any guidelines or procedure would tend to defeat the constitutional purpose of equality and allied purposes referred to above. Courts would take note of actualities of life that persons actuated to corrupt practices are capable, to manouver with higher echelons in diverse ways and also camouflage their
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activities by becoming sycophants or chronies to the superior officers. Sincere, honest and devoted subordinate officers (are) unlikely to lick the boots of the corrupt superior officer. They develop a sense of self-pride for their honesty, integrity and apathy and inertia towards the corrupt and tend to undermine or show signs of disrespect or disregard towards them. Thereby, they not only become inconvenient to the corrupt officer but also stand an impediment to the on-going smooth simphony of corruption at a grave risk to their prospects in career or even to their tenure of office. The term efficiency is an elusive and relative one to the adept capable to be applied in diverse circumstances. If a superior officer develops likes towards sycophant, though corrupt, he would tolerate him and found him to be efficient and pay encomiums and corruption in such cases stand no impediment. When he finds a sincere, devoted and honest officer to be inconvenient, it is easy to cast him/her off by writing confidential with delightfully vague language imputing to be ‘not up to the mark’, ‘wanting public relations’ etc. Yet times they may be termed to be “security risk” (to their activities). Thus they spoil the career of the honest, sincere and devoted officers. Instances either way are gallore in this regard. Therefore one would be circumspect, pragmatic and realistic to these actualities of life while angulating constitutional validity of wide arbitrary, uncanalised and unbridled discretionary power of dismissal vested in an appropriate authority either by a stature or a statutory rule. Vesting arbitrary power would be a feeding ground for nepotism and insolence; instead of subserving the constitutional purpose, it would defeat the very object, in particular, when the tribe of the officers of honest, integrity and devotion are struggling under despondence to continue to maintain honesty, integrity and devotion to the duty, in particular, when moral values and ethical standards are fast corroding in all walks of life including public services as well. It is but the need and imperative of the society to pat on the back of those band of honest, hard-working officers of integrity and devotion to duty. It is the society’s interest to accord such officers security of service and avenues of promotion. That apart, the haunting fear of dismissal from service at the vagary of the concerned officer would dry up all springs of idealism of the employee and in the process coarsens the conscience and degrades his spirit. The nobler impulses of minds and the higher values of life would not co-exist with fear. When fear haunts a man, happiness vanishes. Where fear is, justice cannot be, where fear is, freedom cannot be. There is always a carving in the human heart for satisfaction of the needs of the spirit, by arming by certain freedom, for some basic values without which life is not worth-living. It is only when the satisfaction of the physical needs and the demands of the spirit co-exists, there will be true efflorescence of the human personality and the free exercise of individual faculties. Therefore, when the Constitution assures dignity of the individual and the right to livelihood the exercise of the power by the executive should be cushioned with adequate safeguards for the rights of the employees against any arbitrary and capricious use of these powers.”
In view of prevailing conditions as have been high lighted by Hon’ble
Supreme Court in Delhi Transport Corporation vs. D. T. C Mazdoor Congress (supra)
it is not only desirable but is also necessary that the selection of the Government
servants for appointment to the State service should be through an independent and
autonomous body like Commission and such matters should not be left to the
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government or its officers. Even if the provisions contained in clause (3) of the Article
320 are directory in nature, it is not open to the Government to by pass the
Commission altogether by exercising its power under proviso to the said clause. Power
under the proviso cannot be exercised for making the provisions of said clauses (1)
and (3) of Article 320 ineffective and nugatory. Said proviso cannot be used for
destroying what is contained in Clause (1) and (3) of Article 320. The first contention
of the learned counsel for the petitioner, has therefore, to be accepted.
When a government action/order is challenged on the ground of arbitrariness,
unfairness or it is the duty of the Government to place reasons before the court for
passing such orders. In the instant case only reason given by the government in its
counter affidavit for passing the impugned amendment is the delay in making
selection and disposal of other functions which is caused by the Commission. But who
is responsible for such delay has not been clearly stated. Petitioner in his affidavit has
stated that the Government is equally responsible for such delay. No reason as to why
the selection could not be made at an early date by the Commission on requisition sent
by the Commission, has been given. Whether the Government supplied full and
complete information and whether there was any order from the courts staying the
selection have also not been stated, in the counter affidavit. Allegations are vague.
That apart, it has not been stated as to what step has been taken by the government so
as to remove the delay. Reasons given by the government in support of the impugned
action for dispensing with the consultation with the Commission, apart from being
vague, cannot sustain the notification under challenge.
It may also be stated that in the counter affidavit filed on behalf of the
Commission it has been stated that it was not consulted by the government before
making the impugned amendment in the Regulations. In this connection Report of
the Study team on Recruitment, Selection U.P.S.C/State P.S.Cs and Training
submitted to the Government of India, has been filed as annexure CA-I from perusal
of which it appears that a convention has been established by the Central Government
requiring consultation with the Commission before exercising the power under the
proviso to Clause (3) of Article 320. Relevant extract from the said report is re
produced below :
“The proviso to Article 320 (3) does not require the President or Governor to consult a Public Service Commission before exercising his power to grant exemptions. We consider, however, that it is the spirit of the Constitution that exemption from the consultation with the Public Service Commission should be made very sparingly. We learn that the Union government has established a convention that exemptions are made only after prior consultation with the Union
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Public Service Commission. We suggest that the state governments should establish a similar convention. Further it would be desirable to lay down a procedure that the exemption should be reviewed every 5 years in consultation with a Public Service Commission.”
Although the impugned amendment cannot be struck down on the ground that
it was issued without consulting the Commission, but this aspect has been highlighted
only for the purpose of showing that convention established by the Central
Government in such matters is not being followed at the State level.
For the reasons given above writ petition no 2020 of 1995, Sushil Chandra
Srivastava Vs. State of U. P. and others is allowed with costs. Regulation 3 (a) and (b)
and Regulation 6 of the Uttar Pradesh Public Service Commission (Limitation of
Functions) (Thirteenth amendment) Regulations, 1994 are declared ultra virus and are
quashed. Writ petition no 3587 of 1995 Uttar Pradesh Lok Sewa Ayog
Karmchari/Adhikari Sangh Vs. State of U. P. and other is dismissed without costs and
not maintainable.
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