Allahabad High Court
Dr. Anurag Tripathi And 10 Others vs State Of U.P. And 4 Others on 31 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 151
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 30 Case :- WRIT - A No. - 1298 of 2020 Petitioner :- Dr. Anurag Tripathi And 10 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Amitabh Tripathi,Kripa Shanker Yadav Counsel for Respondent :- C.S.C.,M.N. Singh Hon'ble Pankaj Bhatia,J.
Heard counsel for the petitioners Sri Amitabh Tripathi and Sri G.K. Singh, Senior Advocate assisted by Sri F.A. Ansari, counsel for the respondents.
The petitioners claim that as they were having requisite qualification for appointment to the post of Homoeopathic Medical Officer, they applied for being considered for appointment in pursuance to the applications invited under the Notification dated 18.5.2018 (Annexure No.1 to the writ petition). It is stated that in the first Notification 494 Posts of Homoeopathic Medical Officers were notified, however, subsequently by Notification dated 9.8.2018, 102 Posts were added to the earlier 494 posts, thus, the total number of Posts to be filled was 596 by the Commission. It is further stated that the petitioners applied and were issued admit cards.
The counsel for the petitioners has placed the strong reliance on the Notification (Annexure-1 to the writ petition) wherein it was provided that in the event of their being candidates more than the posts available, the screening test can be conducted in which there is a provision for negative marking. He further argues that in terms of the said Notification the Commission should have called the applicants in the ratio of 1:3, however, the Commission issued guide lines prescribing for minimum eligibility criteria for general and OBC candidates at 60 marks out of 150 i.e. at 40% and with regard to SC/ST candidates the cut off mark was prescribed as 53 marks out of 150 i.e. 35%. It is also stated that the Commission provided that only the person who meets the minimum eligibility criteria of having 40% marks (in the case of general and OBC candidates) and 35% marks (in the case of SC/ST candidates) would be called for interview.
Sri Amitabh Tripathi argues that entire conduct of the Commission is improper for the reason that in the Notification issued there was no provision for eligibility criteria as has been provided by the Commission subsequently and, thus, the Rules have been changed after the exam has started. Sri Tripathi has further placed on record by filing a supplementary affidavit that in all the papers marked A,B,C, & D there were discrepancies in the answer sheets as uploaded by the Commission against which objections were filed, however, the Commission has not disclosed the marks obtained by each candidate in view of the errors in the answer sheets. He further argues that in respect of 177 candidates which were to be selected in pursuance to the advertisement issued in the year 2013 no such eligibility criteria was laid down and, thus, the Commission has discriminated for appointment on the said Posts. Sri Tripathi has placed reliance upon the judgment of the Apex Court in the case of K. Manjusree Vs. State of Andhra Pradesh & another decided on 15.2.2008 in Appeal (Civil) No. 1313 of 2008 wherein the Supreme Court was considered the additional conditions prescribed while appointment to the post of District & Sessions Judge by means of resolution dated 30.11.2004, the Supreme Court allowed the writ petition mainly on the ground that once the rules are declared they cannot be amended midway and requirement of marks for interview after the entire selection process would amount to changing the Rules again after the game was played which is not permitted. The said judgment of the Supreme Court was referred to a larger Bench by means of an order dated March 20, 2013 passed in Civil Appeal No.2634 of 2013 in the case of Tej Prakash Pathak & others Vs. Rajasthan High Court & others.
Sri Tripathi argues that in view of the law laid down in the case of K. Manjusree Vs. State of Andhra Pradesh & another (supra) the action of the Commission cannot be sustained. He further informs that in terms of the reference order dated 20.3.2013 the matters are likely to come up before the Supreme Court for hearing shortly.
Sri G.K. Singh, Senior Advocate appearing on behalf of the respondents contends that a Division Bench of this Court was confronted with the similar issue in the case of U.P. Public Service Commission Vs. Sangeeta and 81 others, 2019 (4) ADJ 650 wherein the Division Bench of this Court considered the Rules applicable for selection and came to a conclusion that prescription of eligibility criteria is within the domain and powers of the Commission in terms of the Service Rules, it further held that such eligibility criteria cannot be faulted or held to be arbitrary. Sri G.K. Singh submits that such judgment is squarely covered to the facts of the present case. Sri Singh further relies upon the judgment of this Court dated 18.11.2019 in the case of Nagesh Chandra Kesharwani & 26 others Vs. State of U.P. & 11 others reported in 2019 (12) ADJ Page 7. In the said case, the learned Single Judge was confronted with the issue that the Service Rules of the said case did not provide any Rule which was akin to Rule 15 (4) of the U.P. Subordinate Nursing (Non-Gazetted) Service (Fourth Amendment) Rules, 2016 which was the basis for decision by the Division Bench in the case of U.P. Public Service Commission Vs. Sangeeta and 81 others.
Learned Single Judge considered the scope of the powers confront on the Commission in terms of the provisions of Uttar Pradesh Public Service Commission (Procedure and Conduct of Business) Rules, 2011 and placing reliance on the said Rules held that the Commission is justified in prescribing eligibility criteria in the efforts to find suitable candidates. He further relies upon the judgment of the Supreme Court in the case of Pranav Verma & others Vs. The Registrar Gneral of the High Court of Punjab and Haryana and another which was decided on 13.12.2019, passed in Writ Petition (Civil) No.565 of 2019 wherein an issue as argued by Sri Tripathi was considered by the Supreme Court as issue no.4 and the Supreme Court had recorded as under:-
?27. As regards the petitioners? plea that marks of the Main Exam should be disclosed before conducting viva-voce, we are of the considered opinion that such a practice may not insulate the desired transparency, rather will invite criticism of likelihood of bias or favourtism. The broad principles to be laid down in this regard must be viewed keeping in view the selections for various categories of posts by different Selecting Authorities, for such a self-evolved criteria cannot be restricted to Judicial Services only. If the Members of the Interviewing Boards are already aware of the marks of a candidate secured in the Written Examination, they can individually or jointly tilt the final result in favour or against such candidate. The suggested recourse, thus, is likely to form bias affecting the impartial evaluation of a candidate in viva-voce. The acceptance of the plea of the petitioners in this regard will also run contrary to the authoritative pronouncement of this Court in Ashok Kumar Yadav and Others v. State of Haryana. As the written examination assesses knowledge and intellectual abilities of a candidate, the interview is aimed at assessing their overall intellectual and personal qualities which are imperative to hold a judicial post. Any measure which fosters bias in the minds of the interviewers, therefore, must be done away with.?
In view of the said submission, Sri G.K. Singh argues that the writ petition at this stage is devoid of merit and is liable to be dismissed.
It is relevant to observe that Sri G.K. Singh was confronted with a specific query with regards to the averment of the petitioners that certain answers were wrong in the answer sheets for which objections were raised by the individual candidate. Sri Singh on instruction states that with regard to the various issues as pointed out by individual candidate, an expert Committee was constituted who have given their recommendation which have been acted upon by the Commission. He is not in a position to answer to whether the marks declared in respect of individual candidates were subsequent to the recommendation for the expert Committee or not at this stage. He further argues that in any view of the matter in terms of the observation made in the case of Pranav Verma & others (supra), the petitioners herein would get a right to challenge the selections after the results are declared of all the grounds available including the ground which have been agitated in the present writ petition.
The counsel for the petitioner argues that the decision to raise the criteria in rerspect of SC/ST candidates from 30% to 35% was taken on 25.7.2019 pertaining to all the advertisements which were to be subsequently issued, however, vide a decision dated 29.8.2019, the decision of 25.7.2019 was applied with immediate effect. He argues that for the selection process which had already started, the Commission could not have introdued the ameded decision dated 25.7.2019 and the same has not been done to all the examinations held prior to 25.7.2019.
The counsel fo the petitioners argues that for all the prior selections with regards to the Homoeopathic Medical Officers specially the selections of 177 candidates made on 25.4.2019 the eligibility criteria of 40% was not applied and the entire selections happened without the applicability of the selection criteria of minimum cut off 40%.
In view of the judgment of the Supreme Court in the case of Pranav Verma & others (supra), I leave it open to the petitioners to challenge the selections of all the grounds as agitated in the present writ petition after the results are declared by the Commission in pursuance to the selections being carried out.
It is clarified that the said arguments as raised by Sri Tripathi pertaining to the modification of the criteria from 30% to 35% in respect of SC/ST candidates is also left open to be canvassed in the writ petition that may be filed after the results are finally declared.
With the said observation, the writ petition is disposed off at this stage.
Order Date :- 31.1.2020 Hasnain