Allahabad High Court
High Court Of Judicature At Allahabad ... vs Ashish Singh on 20 August, 2013
Author: Sunil Ambwani
Bench: Sunil Ambwani, Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment reserved on 11.7.2013 Judgment delivered on 20.08.2013 1. SPECIAL APPEAL NO.1753 OF 2012 High Court of Judicature at Allahabad through its Registrar General & another vs. Ashish Singh Connected with 2. SPECIAL APPEAL NO. 1737 of 2012 Prasoon Tomar and others vs. High Court of Judicature at Allahabad through its Registrar General and others 3. SPECIAL APPEAL NO. 1809 of 2012 Sunil Kumar and others vs. High Court of Judicature at Allahabad through its Registrar General and another 4. SPECIAL APPEAL NO. 1844 of 2012 Dilip Kumar vs. High Court of Judicature at Allahabad through its Registrar General and another 5. SPECIAL APPEAL NO. 2149 of 2012 Vijay Kumar Patel vs. High Court of Judicature at Allahabad through its Registrar General and another 6. SPECIAL APPEAL DEFECTIVE NO. 929 of 2012 Pawan Kumar Singh and others vs. High Court of Judicature at Allahabad through its Registrar General and others 7. SPECIAL APPEAL DEFECTIVE NO. 1013 of 2012 Amit Kumar Upadhya and others vs. Ashish Singh and others 8. SPECIAL APPEAL DEFECTIVE NO. 1045 of 2012 Deepak Gaur and others vs. Ashish Singh and others 9. SPECIAL APPEAL DEFECTIVE NO. 1047 of 2012 Krishna Mohan Mishra and others vs. High Court of Judicature at Allahabad through its Registrar General and others Hon'ble Sunil Ambwani, J.
Hon'ble Surya Prakash Kesarwani, J.
1. We have heard Shri Yashwant Varma, learned counsel appearing for the appellant in Special Appeal No.1753 of 2012. Shri D.P. Singh, Senior Counsel appears for the respondents. In Special Appeal No.1047 of 2012 Shri Shailendra appears for the appellants (selected candidates). In Special Appeal No.1809 of 2012 Shri Vivek Saran and in Special Appeal (D) No.929 of 2012 Shri Ripu Daman Singh appears for the appellants.
2. The Special Appeal No.1753 of 2012, filed by High Court of Judicature at Allahabad through its Registrar General & another and those by the selected/non-selected candidates, arise out of the judgment and order dated 27.8.2012 passed by learned Singh Judge in Civil Misc. Writ Petition No.1922 of 2012 (Ashish Singh vs. The High Court of judicature at Allahabad & others) and other connected writ petitions, by which he has allowed the writ petitions and set aside the selections held for the post of Assistant Review Officer (ARO) in the establishment of the High Court, from the stage of evaluation of the type sheets of computer proficiency test, with liberty to the Committee of Hon'ble Judges appointed by Hon'ble the Chief Justice, which supervised the examinations to either follow the norms of the last selections or lay down the norms for fresh evaluation of the typed sheets taking into consideration as to how with the increase of mistakes, there shall be gradual increase in the deduction of marks, and the words 'not typed' shall be taken as mistake.
3. Learned Single Judge has in his impugned judgment dated 27.8.2012 also held that confining of the selected reserved category candidates in their respective categories is violative of Articles 14 and 16 of the Constitution of India. He has held that the Full Court's resolution on the question of applicability of the rules of reservation cannot hold the field in the facts of the case and has directed, in view of the judgment of the Supreme Court the select panel to be prepared after fresh evaluation ensuring that the candidates belonging to reserved categories be adjusted against the posts meant for open category (wrongly mentioned as general category), if they have secured more marks in aggregate than the last selected candidate within the general category. The entire exercise is directed to be completed within one month. The select list dated 27.5.2011 was consequently quashed.
4. Brief facts giving rise to these Special Appeals are that an advertisement was published by the Registrar General of the High Court of Judicature at Allahabad (in short the High Court) on 29.7.2009 inviting applications for the post of Assistant Review Officers to be appointed in the establishment of the High Court at Allahabad and at Lucknow Bench. The advertisement set out that the recruitment process was to fill up 465 posts, which comprise of existing and consequential vacancies likely to arise upto June, 2009. Apart from these, three backlog vacancies falling in Scheduled Tribe category were also to be included in the selections and thus the recruitment exercise was to be undertaken for a total of 468 vacancies with a break up for categories:- (A) General-232; (B) OBC-126; (C) SC-98 and (D) ST-12 (total 468). The advertisement laid down the essential qualification as required for the ARO's and provided in Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 (in short the Rules of 1976). Rule 8 (b) in Part-IV of the Rules of 1976 provide for sources and method of recruitment to Class-III employees. The post of Assistant Review Officer is required to be filled up 50 % by direct recruitment through competitive examination or selections and 50% by promotion from amongst permanent Routine Grade Clerks, permanent Telephone Operators and permanent Telex Operators. The qualification for AROs in Rule 9 (ii) is a Bachelor's degree of a University established by law in India or a qualification recognized as equivalent thereto. The proviso to Rule 9 applicable to all categories of Class III posts, lays down qualification inserted by Notification dated 26.8.2002 provides:-
"Provided further that in all direct recruitments in Class III knowledge of data entry, word processing and computer operation would be essential qualification while for all promotional posts of Class III its knowledge would be a preferential qualification."
5. The advertisement prescribed the essential qualification as required by an Assistant Review Officer to be the holder of a Bachelor's degree from a University established by law in India and also to have computer knowledge in the field of data entry, word processing and computer operation in English. The advertisement further set out the selection process to be in four parts/phases:- (a) preliminary examination, (b) main examination, (c) computer knowledge test and (d) interview. The preliminary examination was to be of objective type on which candidates were to give answers on OMR sheets. The marks in the mains examination to be subjective in nature, computer knowledge test and interview were in aggregate, were provided to be taken into consideration for determination of merit.
6. A total number of 56,221 applications were received for ARO Recruitment 2009, out of which 49,149 were found to be in order. Out of these 26,148 candidates appeared in the examination. The question paper was divided into two parts. The preliminary examination, which was an objective type test to be answered on OMR sheets carried a total of 100 marks. The main examination contained four descriptive questions and carried a total of 80 marks. The written examination was conducted on 6.2.2011 in 77 centres spread out in the city and was of a duration of three hours from 10 AM to 1 PM.
7. A Committee of five Hon'ble Judges of the Court (in short the Judges Committee) was appointed by Hon'ble Chief Justice, with his delegated powers to conduct and supervise the selections. The Judges Committee vide its resolution dated 29.9.2010 decided that the candidates equivalent to 20 times the vacancies in their respective categories were to be declared eligible in the preliminary examination. The resolutions were collated on 25.2.2011 in which 9354 candidates were selected for evaluation of the main written examination.
8. As per the norms settled by the Judges Committee on 29.9.2010 minimum of 40% marks were to be obtained by General and OBC candidates in each of the written examination and computer proficiency test with an aggregate of 50% for general and OBC category candidates and 45% for Scheduled Caste and Scheduled Tribe candidates. A total number of 980 candidates took the computer proficiency test on 5th, 6th and 7th July, 2011.
9. According to the norms fixed by the Judges Committee only 112, as against 465 posts, candidates out of 980 were initially cleared after computer proficiency test. The results were placed by the office before the Committee of Judges vide a report dated 19.7.2011 on which the Judges Committee, keeping in view the large number of vacancies continuing for several years, affecting the administrative work in the High Court, decided to lower the aggregate marks for general and OBC candidates to 45% and for Scheduled Caste and Scheduled Tribe candidates to 40.5%. Consequently 303 candidates were found successful. When the results were placed for approval before Hon'ble the Chief Justice, he further lowered down the norms for Scheduled Caste/Scheduled Tribe candidates from 40.5% to 40% in aggregate marks and consequently five more candidates got selected in the SC/ST categories increasing the total number of selected candidates to 308, of which the results were declared on 25.7.2011.
10. Shri Ashish Singh, one of the unsuccessful candidate filed a Writ Petition No.1922 of 2012. Some more writ petitions were filed by unsuccessful candidates and were connected to the main Writ Petition No.1922 of 2012 (Ashish Singh vs. The High Court of Judicature at Allahabad & others). Initially the writ petition was filed only against the High Court through its Registrar General and the Deputy Registrar, ARO Examination Cell, High Court of Judicature, Allahabad as respondent nos. 1 and 2. By an order dated 17.4.2012, 17 successful candidates of different categories were added as party respondents no. 3 to 19 to the writ petition.
11. The writ petitions were filed on the grounds, that the selection held for the post of AROs through the Examination 2009 held in 2011 in pursuance to Advertisement No.01/ARO/2009 dated 27.9.2009, is perverse, and in gross violation of the procedure, and the method of selection for direct recruitment on the post as provided under the Rules of 1976, and is also against the settled law and was liable to be set aside. The other grounds of challenge to the selection were set out in ground nos. 3 to 15 as follows:-
"III. Because, the impugned action on the part of the respondent authority in first providing the procedure and criteria of selection on the basis of preliminary examination, main examination, computer knowledge text, followed by interview and further modifying the procedure for selection in the middle after the commencement of process of selection by allocating the minimum qualifying marks for each categories of candidates introduced for the first time and thereafter further re-allocating the same together with the process for preparation of merit list for the first time through corrigendum of the advertisement printed on the admit card only and deleting the interview part from the process of selection even through mentioned in the advertisement is absolutely perverse, illegal and vitiates the entire process of selection which deserves to be set aside.
IV.Because, it is the settled law upto the Hon'ble Apex Court that the criteria for selection cannot be altered to changed by the authorities in the middle or after the commencement of the process of selection and further reallocation of marks for different stages of selection is not permissible in law and vitiates the entire process of selection.
V. Because, in the present case the respondents have modified the altered the criteria of selection not only once but twice in the middle after the commencement of selection by first issuing the corrigendum for introducing the method for preparation of merit list by allocation of marks and further specifying the minimum qualifying marks for General, OBC and SC & ST category of candidates just before the Main Examination and further altering the said criteria of selection by down grading the minimum qualifying marks for each category of candidates at their whims and desire by proceedings against the law and thus vitiating the entire process of selection which cannot be sustained in any manner.
VI. Because, the impugned action on the part of respondent authority in putting the eligibility/qualifying marks for general and OBC category candidates and the same level without keeping any difference in the minimum qualifying marks of the candidates of the said two categories is not only perverse but defeats the purpose of reservation on 27% of seats for OBC candidates and amounts to denial of legitimate opportunity to OBC category candidates and to the petitioners who belongs to OBC category and also eligible in sport quota applied as such in the said competitive examination.
VII.Because, as per the settled law of the Hon'ble Apex Court in the case of P.V. Indiresan vs. Union of India and others it has been held by the Hon'ble Court that there should be at least difference of not more than 10% of the minimum qualifying marks/eligibility prescribed for General and OBC category candidates in order to achieve the reservation for OBC candidates. It is to state that since the respondents have fixed 45% as minimum qualifying marks for general category candidates in the said selection then, the minimum qualifying marks for OBC category would have been 40.5% in the said examination as per the settled law which would have covered and benefited and large numbers of OBC category candidates including the petitioner.
VIII.Because, Section 6 of the U.P. Public Service (Reservation for SC, ST and OBC Category act) 1994, specifically provides that if, the reserved category candidates is selected on the basis of merit in open competition along with general category then the said reserve category candidate would not be adjusted against the quota of vacancies reserved for the said category. However, in the present case the OBC category candidates have qualified along with the general category on the basis of merit in open competition along with general category by obtaining the equal qualifying marks but adjusted in the OBC category by the respondents in a most illegal and arbitrary manner in gross violation of the statutory provisions under the Act, 1994.
IX.Because, the impugned action of the respondents in declaring the result of 308 successful candidates without specifying the number of successful candidates category wise and further not disclosing the number of unfilled vacancies in OBC, SC & ST Category and even not disclosing the same despite the repeated request in writing under Right to Information Act, 2005 and further suppressing the relevant information itself create a doubt in the fairness and transparency in the said selection and puts a cloud on the entire selection and the process so adopted by the respondents.
X.Because, there does not exists any reason on justification on the part of the respondent authorities in first publishing the criteria and the process of selection and making it known to all the candidates applying for the same and thereafter altering and modifying the said criteria twice in the middle after the commencement of the process of selection and changing the minimum qualifying marks for different category of candidates at the time of final selection itself goes to show that the whole process of selection as adopted is wholly unfair, improper and is tainted with gross irregularities apparent on the fact of it.
XI.Because, the entire process and procedure adopted by the respondent in the said selection for the post of Assistant Review Officers lacks fairness and transparency and deserves to be set aside and quashed by this Hon'ble Court.
XII.Because, the respondents have further failed to disclose as to why the minimum qualifying marks earlier fixed for general and OBC category as well as the SC & ST category have been down graded at the time of final selection nor have disclosed the purpose for downgrading and altering the same. It appears that the said alteration in the minimum qualifying marks and the criteria of selection have been changed and modifying by the respondents in the middle and at the time of final selection in order to accommodate and to extend undue benefit to the candidates of their choice, vitiating the entire selection.
XIII.Because, it is the settled law that once the process, criteria and the method of selection has been published and the process of selection has already commenced on its basis it cannot be changed or altered by modifying and amending the criteria of the process of selection time and again which vitiates the entire selection and the result so declared on its basis deserves to be quashed.
XIV.Because, no waiting list has been published by the respondent in the said selection and on the contrary large numbers of vacancies are existing as vacant in OBC category as well as in sport quota.
XV.Because, the aforesaid would clearly demonstrate that the entire selection by the respondents in pursuance to the advertisement no.01/ARO/2009 for the post of Assistant Review Officers is wholly perverse, vitiated and is against the settled law and lacks fairness an transparency in the same further all the relevant information have been suppressed and unreasonably withheld. The entire impugned selection therefore is wholly unfair and deserves to be quashed."
12. Learned Single Judge proceeded to hear the entire bunch of writ petitions together and embarked upon a detailed enquiry in the method and manner of selections with special emphasis on evaluation of the computer test sheets. In the order passed by him on 17.5.2012 he required the High Court to inform as to what procedure/norms were followed in the matter of evaluation of computer knowledge answer sheets. In response he was given three sheets by the System Analyst, Computer Centre for the purposes of explaining the method of evaluation. After examining these three sheets giving out the method of evaluation of marks learned Single Judge by his order dated 18.5.2012 framed issues with regard to the competence of System Analyst, Computer Centre to lay down the norms for evaluation of the answer sheets including his decision to deduct maximum two marks for whatever be the number of mistakes and for not deducting any marks in respect of the words not typed. The High Court was also asked the reason for confining the reserved category candidates to their stream only. Learned Single Judge thereafter requested Judges Committee to re-visit the entire matter and the report of the Judges Committee was asked to be placed before him on 23.7.2012.
13. The Judges Committee with due regard to the orders passed by learned Single Judge on judicial side met on 23.7.2012 and submitted its resolution to the Court as follows:-
"1. The Assistant Review Officer Examination-2009 was to be conducted in three parts- Preliminary Examination (Objective Type), Mains Examination (Subjective Type) and Computer Proficiency Test. Preliminary Examination and Mains Examination were held together.
The setting of Question Papers for Preliminary Examination and Mains Examination was entrusted to two Members of the Committee. The method of evaluation of Answer Booklets of the Preliminary Examination was also entrusted to this Committee.
The Committee in its Meeting held on 29th September, 2010 had resolved that in Preliminary Examination, Twenty times candidates against the number of vacancy will be declared qualified as per their Category and their Answer Booklets of Mains Examination would be examined.
The method of evaluating the Answer Booklets of the Mains Examination was left at the discretion of the Examiners of the Uttar Pradesh Public Service Commission.
The Committee in its Meeting held on 29th September, 2010 had also resolved that the number of candidates who have qualified the Written Examination to be called for Computer Test will be Four times of the vacancy.
The responsibility of holding the Computer Proficiency Test was left to Computer Center. Examination was held by Computer Center, and the result prepared by the Computer Center was approved by Committee.
The Committee in its Meeting held on 29th September, 2010 had resolved that minimum marks to be procured by the candidates of all categories in Subjective Test and Computer Test would be 40% each. However, minimum of the two tests should aggregate 50% in respect of General Category & O.B.C. Category candidates, whereas it should be 45% in respect of S.C. & S.T. Category candidates, but in the Meeting held on 21st July, 2011, the Committee after noticing that the Examination had been held after a period of three years, and sufficient number of candidates are not qualifying as previously decided norms. Accordingly, the Computer Centre was directed to prepare summary charts of candidates who would qualify in each category based on different norms. After perusal of these charts, the Committee resolved that the norms be relaxed and qualifying marks in aggregate be reduced by 10%. Thus, the minimum qualifying marks in aggregate for General & O.B.C. Category was 45% and 40.5% for the S.C. & S.T. Category. Subsequently, as the less number of candidates had qualified, Hon'ble The Chief Justice further reduced the Merit by 0.5% for S.C. & S.T. Category Candidate taking it to 40%.
The Committee also requested the Computer Centre to find out the number of candidates who would qualify in case marking is done on 500 Words. It has been pointed out by the Computer Centre that in that event sufficient number of candidates would not have qualified.
The Computer Centre has also pointed out that no candidate from amongst the unsuccessful candidates (as per the result prepared on the basis of marking on maximum 400 words typing limit) will be selected if the marking is done on maximum 500 words.
2.........."
14. After considering the report of the Judges Committee and hearing the counsels, learned Single Judge found that certain issues still remained unanswered and therefore vide his order dated 27.7.2012 he framed five issues to be answered by the Registrar General by way of an affidavit after obtaining such instructions as may be necessary. The order dated 27.7.2012 passed by the learned Single Judge reads as follows:-
"Report of the Judges Committee has been placed today before the Court. Following four issues still need to be answered:
(a) Could the Judges Committee, which was exercising delegated power of the Hon'ble the Chief Justice while holding the selections for the post of Assistant Review Officer (ARO), further delegate their power in the matter of holding computer efficiency test to the Computer Centre of the High Court, including the authority to lay down the norms for evaluation of the answer-sheets and for altering the same as and when required.
(b) For the computer proficiency test the candidates were supplied copies of judgments of this Court which were approximately 500 words each. The candidates were directed to reproduce/copy the judgment both in the formate as well as in the words within the prescribed ten minutes. It has been decided by the Computer Center that for evaluation of the computer sheets, a candidate, who types only 400 words out of 500 words will be provided 20 marks out of 20 marks i. e. full marks, although the candidate may not have typed 100 words. What happens to these 100 words is not disclosed. It is common knowledge that in respect of type test and shorthand test words not typed are taken as mistake.
(c) Irrespective of the number of mistakes committed, the maximum marks which could be deducted has been fixed as 2. For example even if a candidate commits 200 mistakes in reproduction of the text, he will loose only 2 marks and another candidate who commits 20 mistakes would also loose 2 marks.
(d) The Selection Committee has decided to place the candidates belonging to reserved category, namely OBC, SC/ST within their respective quota irrespective of the marks obtained by them in the selection. For example, if a candidate belongs to OBC has secured higher marks than the candidate selected in the general category, he has not been shifted to the general category and has been placed within the OBC category only.
According to the petitioners such application of the reservation violates Article 14 and 16 of the Constitution of India, inasmuch as open category posts are not reserved for any category and therefore the open category posts are to be filled on merit irrespective of the category to which the candidate belongs, he may be General, OBC or SC/ST.
Let Registrar General of this Court, after obtaining such information as may be desired, file an affidavit on all the aforesaid issues.
The selected candidates are also at liberty to file reply in response to the aforesaid query.
Respondents shall also produce the chart which was prepared with reference to 500 words, as referred to in the report of the Judges Committee on the next date.
Put up on 13th August, 2012."
15. The Registrar of the Court in response to the queries made filed an affidavit. The relevant paragraphs 4, 5, 6 and 7 of the affidavit, which are quoted in the judgment, are re-quoted as follows:-
"4. .............The computer proficiency test was conducted as the responsibility of holding the same was left to the Computer Centre which was approved by the Hon'ble Committee vide its minutes dated 23.7.2012. A photo copy of the minutes is marked and attached to this affidavit as Annexure No.-1.
5.That in regard to issue no. (b) supra it is stated that in computer proficiency test, the candidates of each batch were given passages from different texts of approx. 500 words, (depending on where a complete sentence came to as end) which varied from batch to batch for typing and formatting in 10 minutes. Even if 500 words limit is considered for evaluation, it is a normalisation of range to 500 words. No negative marking was done in any of the tests i. e. preliminary, main written test as well as the computer proficiency test, hence the left out passages in the text in computer proficiency test, must not be assumed to be mistakes. Marks awarded in each of the tests were based on the attempted questions or passages from the text attempted for typing by the candidates.
6. That, generally in competitive examinations like Common Admission Test (CAT) held by the IIMs for admission in MBA Course, Graduate Aptitude Test in Engineering (GATE) held by IITs for admission in M.Tech. And Ph.D. Courses in India as well as the examinations held by several institutions in foreign countries the marks awarded to the candidates appearing in GMAT, GRE, TOEFL etc., are based on the performance of a candidate over the other candidates. Candidates with highest score of 99.90% (percentile) in some of the above tests conducted by reputed professional institutions will not mean that the candidate has attempted all questions and committed a mistake of 0.1% only. Upper range of 400 words was fixed for evaluation purpose as an average candidate was expected to type only so many words with proper format in ten minutes. Maximum candidates performed in the range of 150 to 300 words. Norms adopted for the evaluation of the answer sheets of the computer proficiency test were applied uniformly on all candidates and scaled scores were based on the overall performance of the candidates in computer proficiency test over the other candidates treating the highest performing candidate (typing more than 400 words) as the best candidate who has been treated to have achieved landmark score of 100% marks and awarded 20 out of 20 marks.
7. ............................. In those cases where the candidates did not commit any mistake and the typed & formatted text of passage were in the same pattern as printed in the sheet provided to the candidates, option of awarding one bonus mark was also considered with a view to distinguish such candidates from the others."
16. Learned Single Judge in his judgment dated 27.8.2012 did not find any fault with the examinations upto the stage of mains subjective type examination. He has, however, set aside the examination from the stage of evaluation of computer type sheets and has directed the High Court to either follow the norms of the last selection or lay down the norms for fresh evaluation of the computer type sheets. He has also directed the fresh evaluation of results by adjusting the reserved categories against the post meant for open category, if they achieve more marks in aggregate than the last selected candidate within the general category.
17. Shri Yashwant Varma, learned counsel appearing for the appellant-High Court submits that learned Single Judge has adopted a novel procedure to decide the writ petitions. There was no challenge in any of the writ petitions to the method of evaluation of the computer knowledge tests and that no one had challenged the applicability of the rules of reservation. Learned Single Judge framed questions and caused investigative enquiries on his own and kept on finding new grounds in the hearing of the writ petitions from stage to stage. He held open court proceedings calling the Registrar General and the System Analyst of the Computer Centre to his Court, and called for reports from time to time to satisfy himself with the validity of selection process. He over-reached his jurisdiction and propriety in calling for a report from the Committee of Five Hon'ble Judges of which many of them were senior to him to justify the method adopted to examine the computer type sheets.
18. It is submitted by learned counsel appearing for the High Court that learned Single Judge not only breached the rules of procedure in hearing the writ petitions, but also broke all norms of propriety in judicial proceedings in proceeding to hear the matter as he was reviewing the entire examination process, all by himself. The petitioners had not challenged the selection on the ground of the validity of the evaluation of the computer type sheets, and the award of marks. The applicability of the rules of reservation was not an issue raised nor argued and was found by learned Single Judge on his own and was examined by him. It is submitted that no argument was addressed on the question of applicability of the rules of reservation and that no one questioned the resolution of the Full Court dated 10.4.2004, by which the limited applicability of the rules of reservation in the High Court, in which the Full Court had opined that the rules of reservation in Section 3 (3) of the Act of 1994 to the extent of the adjustment of the reserved categories in the open category, if they achieve more marks, is provided, will not apply to the selections and appointments to any posts in High Court.
19. Shri Yashwant Varma, learned counsel appearing for the High Court states that not a single petitioner in the entire bunch of 20 writ petitions had qualified in the mains examination to be short-listed for computer proficiency test. The judgment, therefore, if implemented, in the manner as directed by learned Single Judge, is not going to benefit any of the petitioners individually or collectively. The details of the marks scored by the petitioners were produced before learned Single Judge with a request that since none of these candidates had qualified to appear in the computer proficiency test, there would be no object to examine the method of evaluation of the computer type sheets. Learned Judge, however, proceeded to cancel the results from the stage of evaluation of the type sheets and directed Section 3 (3) of the UP Act 1994 to be applied in reviewing the examination results and re-adjusting the vacancies.
20. Shri Yashwant Varma submits that both the Hon'ble Committee and Registrar General in their reports had explained that the Computer Centre was working under the directions of Judges Committee and that the entire procedure of selection was supervised and monitored by Judges Committee. The Computer Centre did not, at any stage, act on its own in evaluation of the type sheets. It was specifically stated in the report of the Hon'ble Committee that a Committee had requested the Computer Centre to find out the number of candidates, who would qualify in case marking is done at 500 words. When it was pointed out that in that event sufficient number of candidates would not have qualified, the result was prepared on the basis of marking on maximum of 400 words typing limit. The Registrar General had further clarified in his affidavit that the computer proficiency test was conducted by the Computer Centre, which was approved by the Judges Committee in its minutes dated 23.7.2012. In paragraph-5 of the affidavit of the Registrar General it was stated that each batch was given passages from different texts of approximately 500 words, depending on where a complete sentence came to an end, which varied from batch to batch for typing and formatting in ten minutes. Even if 500 words limit is considered for evaluation, it is a normalisation of range to 500 words. No negative marking was done in any of the tests i.e. preliminary, main written test as well as computer proficiency test, hence the left out passages in the text in the proficiency test must not be assumed to be mistakes. The marks awarded in each of the tests were based on the attempted questions or passages from the text attempted for typing by the candidates.
21. It was thereafter explained by the Registrar General, that in the competitive examinations like Common Admission Test (CAT) held by the IIMs for admission in MBA Course, Graduate Aptitude Test in Engineering (GATE) held by IITs for admission in M.Tech and Ph.D Courses in India as well as the examinations held by several institutions in foreign countries the marks awarded to the candidates appearing in GMAT, GRE, TOEFL etc., the performance of a candidate is based over the other candidates. The highest score of 99.90% (percentile) in some of the tests does not mean that the candidate has attempted all questions and committed a mistake of 0.1% only. The upper range of 400 words was fixed for evaluation purpose as all average candidates were expected to type only so many words with proper format in ten minutes. Maximum candidates performed in the range of 150 to 300 words. Norms adopted for the evaluation of the answer sheets of the computer proficiency test were applied uniformly on all candidates and scaled scores were based on the overall performance of the candidates in computer proficiency test over the other candidates treating the highest performing candidate (typing more than 400 words) as the best candidate, who has been treated to have achieved landmark score of 100% marks and awarded 20 out of 20 marks.
22. It was further explained by the Registrar General in para-7 of the affidavit that in those cases where the candidates did not commit any mistake and the typed & formatted text of passage were in the same pattern as printed in the sheet provided to the candidates, option of awarding one bonus mark was also considered with a view to distinguish such candidates from the others.
23. Shri Yashwant Varma submits that a curious procedure was adopted by learned Single Judge in reviewing the examination process, questioning the decisions taken by the Judges Committee, which had supervised each stage of the examination. The method of awarding marks in computer proficiency test as well as reservations were not an issue raised either in pleading in the original nor any of the petitioner had either amended the writ petition or raised any arguments on these points. Learned Single Judge performed the roles of the petitioners, prosecutor, as well as a judge in deciding the issues on his own. Such a method of deciding the cases is not permitted in our judicial system. A judge is not ordinarily permitted to fish out the grounds of challenge, framed issues from time to time in the proceedings on the material produced before him, and become prosecutor in which the issues, which were neither raised nor argued before him were decided. The writ petitions were not filed in public interest. The petitioners had neither raised nor were aware of the challenges to the system of evaluation of computer type sheets, nor any malafides were alleged against the members of the Committee, Registrar General or Computer Centre. In fact the counsel appearing for the petitioners kept silent on these issues as they were fully aware that even if any irregularities are found in evaluation of the type sheets in the computer proficiency test, none of the petitioners will succeed as they did not qualify for computer proficiency test.
24. Shri Yashwant Varma submits that all the grounds of challenge to the examinations were based on modifying the criteria of selection by giving up interview, which was initially declared in the advertisement and by varying merit list. Further they had challenged the examinations on the ground that the High Court should have lowered the minimum qualification marks for the OBC candidates. The entire threshold of argument was based on the judgment of Supreme Court in P.V. Indiresan (2) vs. Union of India and others (2011) 8 SCC 441 in which lowering of marks for OBC candidates was held justified. They were claiming to fill up all the advertised posts, as only 308 out of 468 advertised posts were filled up. Learned Single Judge, instead of considering the grounds of challenge, after making enquiries found out new grounds by himself and then proceeded to answer them, without realising that his directions even if justified and carried out will not benefit any of the petitioners.
25. On merits of the judgment Shri Yashwant Varma states that it was open to the Judges Committee to choose any fair and reasonable criteria for evaluation of the type sheets in the computer proficiency test. Learned Single Judge had no jurisdiction to question the discretion of the Judges Committee, unless the method of evaluation was arbitrary and resulted into discrimination affecting the results and by which any of the petitioners was likely to gain. He has examined the answer sheets and has proceeded to comment on the methods adopted in the evaluation on answer sheets which had the approval of the Judges Committee. The Committee of five Hon'ble Judges had in its report to the learned Judge intimated that they did not find any fault in the method of evaluation and thus learned Judge without any complaint made by any of the petitioners or their counsels exceeded in exercise of his jurisdiction in proceeding ahead and finding faults with the evaluation of results of the computer proficiency test. The entire exercise was in futility as no petitioners or any other candidate was discriminated nor had any chance of selection out of such exercise.
26. Shri Yashwant Varma submits that with the giving up interview, which was not the requirement of the rules and was erroneously mentioned in the advertisement for selection, as the rules had to ultimately prevail, and the lowering of the minimum qualifying marks was to the benefit of all the candidates. The Hon'ble Judges Committee had adopted a procedure to fill up as many as vacancies as possible, on a consideration that the selection process had taken a long period of time and there was large number of vacancies affecting the administrative functions of the High Court. The relaxation was to give benefit to all the candidates and was not to prejudice any one.
27. Shri Yashwant Varma submits that learned Single Judge has erred in law in applying the principles laid down in K. Manjusree vs. State of Andhra Pradesh and another (2008) 3 SCC 512 in which it was held that the Full Court of Andhra Pradesh High Court did not accept the resolution of the Administrative Committee with the select list prepared by the Interview Committee and approved by the Administrative Committee. The Full Court had authorised the Chief Justice to constitute a Committee of Judges to prepare a fresh list of candidates to be recommended for appointment of District & Session Judges (Grade II). A Sub Committee of two Hon'ble Judges appointed by the Chief Justice was of the view that the candidate should be evaluated with reference to written examination of 75 marks and interview of 25 marks instead of their earlier evaluation on the written examination of 100 marks and interview of 25 marks, thereby varying the prescribed ratio between the written examination marks and interview marks from 3:1 to 4:1 and thereby some of the candidates including K. Manjusree got eliminated. On these facts it was held that what is illegal in the case is changing the criteria after completion of the selection process; when the entire selection proceeded on the basis that there will be no minimum marks for the interview.
28. Shri Yashwant Varma has relied on State of Haryana vs. Subash Chander Marwaha and others (1974) 3 SCC 220; Madhya Pradesh Public Service Commission vs. Navnit Kumar Potdar and another (1994) 6 SCC 293 and informs the Court that three Judges of Supreme Court have referred in Tej Prakash Pathak & others vs. Rajasthan High Court & others 2013 STPL (Web) 224 SC the ratio of the judgment in in K. Manjusree vs. State of Andhra Pradesh and another (supra) to a larger bench. The Supreme Court has observed in the referring order that the question whether the 'rules of the game' could be changed was considered by the Supreme Court on a number of occasions in different circumstances. Such question arose in the context of employment under State, which under the scheme of our Constitution is required to be regulated by law made under Article 309 or employment under the instrumentalities of the State which could be regulated either by statute or subordinate legislation. In either case the 'law' dealing with the recruitment is subject to the discipline of Article 14. The legal relationship between employer and employee is essentially contractual. Though in the context of employment under State the contract of employment is generally regulated by statutory provisions or subordinate legislation, which restricts the freedom of the employer i.e. the 'State' in certain respects. In the regime of Article 309 the 'law' - the recruitment rules in theory could be either prospective or retrospective subject of course to the rule of non-arbitrariness. In the context of employment under the instrumentalities of the State, such rules cannot be made retrospectively unless specifically authorised by some constitutionally valid statute. An absolute and non-negotiable prohibition against retrospective law making is made only with reference to the creation of crimes. Any other legal right or obligation could be created, altered, extinguished retrospectively by the sovereign law making bodies. Changing the 'rules of game' either midstream or after the game is played is an aspect of retrospective law making power, which is to be exercised in a manner that it does not conflict with any of the other constitutional guaranteed rights such as Articles 14 and 16. The matter has been referred to a larger bench.
29. Shri D.P. Singh and Shri Vivek Saran, on the other hand, submit that in the present case, the decision not to take interviews was taken in violation of the advertisement for selection. The criteria of selection was changed repeatedly in the resolutions passed by Hon'ble Committee and thereafter by Hon'ble the Chief Justice lowering the bench mark of selection vitiating the selection process. It is submitted that learned Single Judge hearing a writ petition had jurisdiction under Article 226 of Constitution of India to examine every aspect of the selections. If he was not satisfied for sufficient reasons, given by him that the evaluation of computer type sheets was done arbitrarily and which violated Articles 14 and 16 (1) of Constitution of India, no fault can be found in the judgment. The revaluation has been left with the Judges Committee, which has also been directed to examine whether old system of evaluation should be valid or new system should be adopted, which was found faulty.
30. Shri D.P. Singh submits that rules of reservation providing for the candidates of reserved category be adjusted against the post meant for open category, if they score more marks in aggregate than last selected candidate within the general category was subjected to test both in Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 and in M. Nagraj's case and that in both the cases the rule has been upheld. The High Court cannot discriminate the candidates as against these rules.
31. Shri D.P. Singh submits that learned Single Judge is correct in holding that the purity in administration has to be maintained and that technicalities cannot be pitted against substantial justice. If there is any error in the method of evaluation, which has affected the final result, there is no harm in re-examining the answer sheets of the computer test by adopting a fair and reasonable criteria and further in applying the rules of reservations in a manner which does not offend Articles 14 and 16 of the Constitution of India.
32. We have examined the method, followed by learned Single Judge in deciding the case, the reasoning adopted by him, the ultimate conclusion drawn by him and do not approve them. The jurisdiction under Article 226 of Constitution invoked by any person must be exercised strictly in accordance with the law. The Court must, unless the matter is filed in public interest, confine its enquiry and judgment to the grounds raised in the pleadings and the prayers. The Court is not supposed to initiate and embark upon a fishing and roving enquiry to find out faults with the examination, specially when the examination has been conducted by a Committee of five Hon'ble Judges appointed by the Hon'ble Chief Justice and which has supervised every stage of examination. Learned Single Judge did not find fault either in the method adopted for examination which was in accordance with the Rules of 1976 and in which it was decided not to hold interview as stated in the advertisement as the method of selection in the rules did not permit any interview. The rules made in this regard under Clause (2) of Article 229 of Constitution of India by Hon'ble the Chief Justice have to prevail over the advertisement made by the Registrar General of the Court. There was no complaint for not holding the interview raised by any candidate either before or in the process. Learned Single Judge also did not find any fault in the decision taken by the Judges Committee to lower the minimum qualifying marks in the main written examination as the lowering of marks benefited all categories of candidates across the board including the petitioners to qualify. The object of lowering the marks was to accommodate as many candidates as possible to fill up the vacancies, which were continuing in the establishment of the High Court for almost three years affecting the administrative work. The ratio of judgment of the Supreme Court in K. Manjusree vs. State of Andhra Pradesh and another (supra) was not applicable to the facts of the case.
33. If in the process of holding examination for selection to any public appointment the rules are relaxed to give benefit to all the candidates across the board, and that the lowering of marks had not prejudiced any one or caused any discrimination, it cannot be said that the rules of the game were changed to interfere in the method adopted for selections.
34. The writ petitioners were not aware of the method of awarding of the marks in the computer proficiency test and the manner, in which the computer type sheets were examined. The method adopted by the Computer Centre with the approval of Judges Committee was questioned by learned Single Judge only after he called for the reports from the System Analyst, the Judges Committee and the Registrar General of the Court. We are surprised as to how and in what circumstances learned Single Judge substituted his own understanding of examinations and award of marks in the computer proficiency test to be the grounds of challenge to the selection process. The method of computation of marks in the computer proficiency test was not known to any of the candidate nor the writ petitioners had any grievance with it. No one raised any objection nor any counsel appearing for the petitioners had raised an issue. In the counter affidavit filed by the High Court there was no indication about the method of evaluation. Learned Single Judge appears to have acquired knowledge from the reports submitted by the Computer Centre apparently by an exercise in which he appears to have pre-judged the issue and was trying to find fault with the examination in a manner, which was not going to benefit any one.
35. Coming to the method of evaluation of typed sheets in the computer proficiency test we find that the text provided for total of 20 marks in typing about 500 words from different passages in 10 minutes. The marks to be awarded was based on the total number of words typed by the candidates, formating of the text and errors committed. The errors were to be marked in a manner that one error in each 50 words was to be ignored, if the errors are more than the marks were to be deducted. Such deduction, however, should not be more than 10% of the total marks i.e. two marks. On the other hand, if the type sheets were error free, properly formatted in terms of the font style, and size as it was used in the original sheet provided to the candidate, bonus of one mark was to be given in case of exceptional good sheet. 40% cut of marks were fixed to qualify in the computer operation test and thus the copies were decided to be checked in two steps. In the first step, initial checking for typing mistake, spelling mistakes, formatting etc. was to be made and in the second step, marks were to be awarded after adopting a proper scaling in case sufficient number of candidates did not qualify in the computer operation test. The System Analyst, Computer Centre had disclosed the method as above in the first sheet. In the second sheet titled as 'general instructions' for evaluation of copies of the computer operation test. he has given the indication of marks to be awarded on the total words printed in the sheet including header and footer information and in the third sheet he had indicated that different passages of about 500 words were given to the candidates of each batch for typing, formatting in the same pattern as has been provided in the sheet in the given time of 10 minutes. The total marks allocated for the computer operation test was 20 marks as the marks were awarded based on total number of words typed by the candidates, formatting of the text and errors committed.
36. The object and purpose of computer efficiency test, as set out in the proviso of Rule 9 of the Rules of 1976, is to test the knowledge of data entry, word processing and computer operation. The ARO's work in the establishment as clerks. They are not required to take dictations in shorthand and type out texts. The Computer Centre adopted the well known and accepted method of evaluation of computer efficiency test, which is different than the test for a Stenographer or Personal Assistants working in the establishment. We do not find that the method adopted was arbitrary, irrational or unreasonable. Learned Single Judge fell into error in asking for a report to be submitted by Judges Committee to consider the validity of the method adopted in awarding marks in computer proficiency test, and in holding that the method adopted was arbitrary.
37. In Sanchit Bansal and another vs. Joint Admission Board and others (2012) 1 SCC 157 the Supreme Court has reiterated the principles of judicial review/interference in the process of evaluation/ranking and selection of candidates to suit specialised courses in education/academic matters. While reviewing the procedure of computation of cut off marks in JEE 2006 for admissions to IITs and other premier engineering colleges it was held that the procedure adopted by the Joint Admissions Board may appear to be highly cumbersome and complicated, but the object of the procedure for arriving at the cut-off marks was to select candidates well-equipped in all the three subjects namely Physics, Chemistry and Mathematics, with reference to their marks, weighed against the average merit of all the candidates, who appeared in the examination. The Supreme Court held in paragraph-22 that the fact, that the procedure was complicated, would not make it arbitrary or unreasonable or discriminatory. It was thereafter held in paragraphs 22 to 28 as follows:-
"23. There are several statistical methods of preparing the ranking for purpose of selecting the best candidates for admission to a course, some simple and some complex. Each method or system has its merits and demerits and can be adopted only under certain conditions or by making certain assumptions. Any such statistical techniques should be under continuous review and evaluation to achieve improvement, in the light of experience gained over the years and new developments, if it is a reliable tool in the selection process.
18. In Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth [1984 (4) SCC 27] it was observed thus :
"29...the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them."
24 In All India Council for Technical Education v. Surinder Kumar Dhawan [2009 (11) SCC 726] this court held :
"16. The courts are neither equipped nor have the academic or technical background to substitute themselves in place of statutory professional technical bodies and take decisions in academic matters involving standards and quality of technical education. If the courts start entertaining petitions from individual institutions or students to permit courses of their choice, either for their convenience or to alleviate hardship or to provide better opportunities, or because they think that one course is equal to another, without realizing the repercussions on the field of technical education in general, it will lead to chaos in education and deterioration in standards of education.
17....... The role of statutory expert bodies on education and role of courts are well defined by a simple rule. If it is a question of educational policy or an issue involving academic matter, the courts keep their hands off. If any provision of law or principle of law has to be interpreted, applied or enforced, with reference to or connected with education, the courts will step in.:
(emphasis supplied)
26.This Court also repeatedly held that courts are not concerned with the practicality or wisdom of the policies but only illegality. In Directorate of Film Festivals v. Gaurav Ashwin Jain [2007 (4) SCC 737] this court held :
"16....Courts do not and cannot act as appellate authorities examining the correctness, suitability and appropriateness of a policy, nor are courts advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review..."
(emphasis supplied)
27.Thus, the process of evaluation, the process of ranking and selection of candidates for admission with reference to their performance, the process of achieving the objective of selecting candidates who will be better equipped to suit the specialized courses, are all technical matters in academic field and courts will not interfere in such processes. Courts will interfere only if they find all or any of the following : (i) violation of any enactment, statutory Rules and Regulations; (ii) mala fides or ulterior motives to assist or enable private gain to someone or cause prejudice to anyone; or where the procedure adopted is arbitrary and capricious.
28. An action is said to be arbitrary and capricious, where a person, in particular, a person in authority does any action based on individual discretion by ignoring prescribed rules, procedure or law and the action or decision is founded on prejudice or preference rather than reason or fact. To be termed as arbitrary and capricious, the action must be illogical and whimsical, something without any reasonable explanation. When an action or procedure seeks to achieve a specific objective in furtherance of education in a bona fide manner, by adopting a process which is uniform and non- discriminatory, it cannot be described as arbitrary or capricious or mala fide."
38. In the present case as found by us the purpose of the computer efficiency test was to test the knowledge of data entry, word processing and computer operations. The Judges Committee decided not to award negative marks. The candidates for selections on the post of ARO's are not required to take dictation nor were subjected to any shorthand and type test for the purposes of testing their knowledge of language and grammar. They are only required to type on computer with proper formatting. The method of evaluation of marks accepted by the Judges Committee thus cannot be said to be arbitrary, irrational or unreasonable.
39. Sitting on judicial side a Judge does not get any extraordinary powers to overreach the judicial discipline and to call for reports directly from the Judges Committee appointed to assist Hon'ble the Chief Justice in supervising selection process for appointments in the establishment of the Court. The wisdom of the brother Judges, who discharge functions on administrative side in addition to their responsibilities in deciding the cases, should not be subjected to any criticism or comment. Even if it is found that there is some error, learned Judge hearing the writ petition should exercise restraint and show due regard to the decisions taken by the Judges Committees. In all such cases the settled judicial norms and principles in exercising judicial powers with reasonable restraint and courtesy should be followed.
40. In the present case, it was pointed out to learned Single Judge that the lowering the cut-off marks in selection was for the benefit of all the candidates as the Judges Committee wanted to fill up as many advertised posts as possible. The lowering of the cut-off marks benefited all the candidates irrespective of their categories across the board. Every candidate benefited with the lowering of the minimum qualifying marks. If the Judges Committee would have insisted upon adhering to the minimum qualifying marks fixed in its first meeting both in the mains examination and in the computer proficiency test only 112 candidates could have qualified to be selected for the advertised 468 posts. By lowering the minimum marks in the main examination and changing the method of evaluation of marks in computer proficiency test 303 candidates got selected. Hon'ble the Chief Justice found that the minimum marks should be further lowered by 0.5% for SC/ST candidates by which five more candidates belonging to SC/ST categories were selected. We do not find that any of the petitioners had any valid ground for challenging the selections on which the writ petitions could have succeeded. We also do not find that any candidate made a representation to Hon'ble the Chief Justice to further lower the marks to accommodate more number of candidates to fill up all the vacancies.
41. We find that the explanation submitted by the System Analyst, Computer Centre and accepted by the Committee of Judges supervising the selections was free of any arbitrariness or discrimination. There was no scaling or moderation in the method to cause any interference. Each candidate was examined on the basis of his performance without any discrimination. The computer efficiency test was to consist of 500 words from given passages to be typed in ten minutes. The candidates were not tested in the knowledge of hardware, used in the computers or software used for operating the system, nor their knowledge of the English language, grammer or spelling of words was to be tested. They were tested on the proficiency in working on the computer, namely in typing and formatting the given text. They were to be tested on the words actually typed by them and not which they missed out or could not type. There was no negative marking nor any marks were to be deducted for spelling mistakes. There was no question therefore of finding mistakes in the left out words, in the text. The method adopted is a well recognised method, considered and adopted by all IIMs and IITs and international examination bodies in which marks are awarded on the performance, and not on the mistakes. The Computer Centre was given the task to test the candidates in the use of computer for typing and formatting. The Judges Committee neither permitted nor adopted the method of scaling of marks. The Judges Committee did not ignore any prescribed rules, procedure or law, nor their decisions are based on any prejudice or preference rather than reasons or fact. There was no challenge on the grounds of lack of bonafides. The reasoning given by learned Judge in finding fault in the evaluation of the typing sheets, is thus not liable to be sustained.
42. There was no challenge to application of rules of reservation. As a matter of fact none of the candidates in reserved categories had claimed to have achieved the minimum qualifying marks. They were in fact pushed up for selection by lowering the qualifying marks and thus there was no question of any adjustment being made of reserved categories in the open category.
43. The question, as to whether non-acceptance of the rule of reserved category candidates replacing the open category candidates if he has achieved more marks by the Court in the resolution of the Full Court of the High Court was not under challenge in any of the writ petitions. The applicability of Section 3 (3) of the UP Act of 1994 was neither called in question nor was discussed by learned Single Judge in disapproving the resolution of the Full Court making it in applicable in the High Court. The findings were recorded without sufficient facts, and material placed on record and are liable to be set aside.
44. It is submitted that the High Court has not given sports quota to the sportsman in accordance with its established practice and the orders issued by the High Court from time to time. The ground has not been considered and answered in the judgment. It will be open to the petitioners-appellants, who have any complaint regarding appointment in sports quota to file a review petition to be considered by learned Single Judge.
45. The Special Appeal No.1753 of 2012 filed by the High Court; Special Appeal Defective Nos. 1013 of 2012; 1045 of 2012 and 1047 of 2012 filed by the selected candidates are allowed. The judgment of learned Single Judge dated 27.8.2013 in Writ Petition No. 1922 of 2012 (Ashish Singh vs. the High Court of Judicature at Allahabad and others) and other connected writ petitions is set aside. The Special Appeal Nos.1737 of 2012, 1809 of 2012, 1844 of 2012, 2149 of 2012 and Special Appeal Defective No.929 of 2012 filed by the unsuccessful candidates are dismissed.
Dt.20.8.2013 RKP/