Allahabad High Court
Lalji Prasad Son Of Ram Kesar vs Collector And Udai Bhan Chand on 6 April, 2007
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
JUDGMENT Sudhir Agarwal, J.
1. Aggrieved by the non selection for the post of junior clerk and typist in the office of the Collaborate, Sant Kabir Nagar, the petitioner, Lal Ji Prasad has come up before this Court in this writ petition under Article 226 of the Constitution of India seeking writ of certiorari for quashing the result dated 28.10.90 in 80 rap as it pertains to the post of typist under Other Backward Class (hereinafter referred to as OBC) category and has further sought writ of mandamus commanding the respondent No. 1 to appoint him on the aforesaid post in accordance with law.
2. The facts in brief as stated in the writ petition are that in August, 1998 the respondent No. 1 issued an advertisement bearing No. 1 of 1998 inviting applications for the post of typist and junior clerks. The petitioner applied. A written examination was conducted on 13.12.9(8 wherein he appeared and was declared selected in February, 1999. Thereafter he was called for interview on 25.9.99 and result was declared on 28.10.99 wherein respondent No. 2, Udai Bhan Chand was shown selected against the vacancy reserved for OBC. The petitioner claim to have secured higher marks than he respondent No. 2 in written and typing test, yet he has not been selected and this is illegal and arbitrary. In the supplementary affidavit filed by the petitioner, it has been stated that as per the rules, the petitioner was awarded 8.08 marks in written test while respondent No. 2 was awarded 6.84. marks, and whereas the petitioner obtained 7.04 marks in typing, respondent No. 2 obtained 5.04. The total marks obtained by the petitioner was 33.09 and that of respondent No. 2 32.45, yet respondent No. 2 has been selected showing illegality and arbitrariness on the part of respondent No. 1.
3. The respondent No. 1 has filed counter affidavit opposing the writ petition and stating that as per rules, where typing test is essential, a candidate who has appeared in written test is allotted 20% marks. 33% marks are allotted on the basis of the marks obtained in the qualifying examination. The candidates who appear in typing test and are found successful, having the minimum typing test are awarded 20% more in respect of written test since the typing test is only a qualifying test and not the basis of selection. A supplementary counter affidavit has also been filed in which it is stated that in the written test, the petitioner secured 6.66 marks while respondent no 2. secured 720. However, it is further said that typing test is an, addition qualification but not the basis of selection.
4. The respondent No. 2 has filed his counter affidavit as well as supplementary counter affidavit stating therein that the petitioner has no right to challenge his appointment as the selection has been held by the respondent No. 1 in accordance with rules. In the supplementary counter affidavit he has annexed his High school and Intermediate certificates showing that he has secured 315 marks in High School Examination, 1982 and passed in First division, while in Intermediate, 1984 examination has secured 251 marks and passed in second division. He has claimed that he is fully eligible and qualified for the aforesaid post and has secured highest marks, therefore, his selection is absolutely correct and the writ petition is liable to be dismissed.
5. This Court vide order dated 4.12.2006 directed respondent. No. 1 to produce the record of selection which has been produced and perused by the Court
6. Sri Ashok Khare, learned Senior Advocate submitted that it appears from the stand of respondent No. 1 that it did not award any marks in typing test and has proceeded on the basis that the incumbents should have secured minimum typing proficiency, whereupon, the marks obtained by the respective candidates in written test are to be increased by 20% and on the basis thereof the selection has been made. He submitted that the procedure adopted by the respondent No. 1 is contrary to rules inasmuch as it was incumbent upon the authority to award appropriate marks in typing test also and, thereafter prepare the merit list.
7. The learned standing Counsel after perusing the record admitted that in the typing test only the speed of the candidate has been calculated and marks have not been awarded. For example, typing speed of the petitioner has been noted as 40.4 w.p.m. and that of the respondent No. 2 is 34.2 w.p.m. However, no marks as such have been awarded for the reasons the typing test was only qualifying test.
8. Sri Madan Srivastava learned Counsel appearing for respondent No. 2 supports the arguments of the learned Standing Counsel, further submitted that in any case there was no fault of respondent No. 2 in the entire process of selection and since he has been appointed long back and is continuously working, his appointment be not disturbed at this stage.
9. The short question for consideration before this Court is whether the typing test is only qualifying test or constitutes an integral part of the entire selection wherein separate marks have to be awarded which would form part of the total merit of the respective candidates.
10. It is not disputed by the learned Counsel for the parties that the selection in the question is governed by the U.P. Procedure for Direct Recruitment for Group C post (out side the purview of the U.P.P.S.C.) Rules 1998 (hereinafter referred to as the Rules 1998). Rule 5 (1,3,4 5 & 6) of 1998 Rules as originally enacted vide U.P. Gazette dated 9.6.1998 read as under:
5. Procedure for direct recruitment-
1. For making direct recruitment the vacancies shall be notified in the following manner:
(i) by issuing advertisement in daily newspapers having vide circulation:
(ii) by passing the notice on the notice board of the office or by advertising through Radio/Television and other employment newspapers: and
(iii) by notifying vacancies to the Employment Exchange.
(2)...
(3) The merit list of the candidates shall be prepared in the following manners:
(a) (i) There shall be an objective type written examination of forty per cent marks consisting of a single question paper which will include General Hindi, General Knowledge and General Studies. In the case of candidates to be selected for any post for which typewriting or shorthand and typewriting have been prescribed as an essential qualification, the written test shall be of twenty per cent marks only.
(ii) The question paper-cum answer sheet (in duplicate) shall be provided to the candidates. When the examination is over, the candidates shall be allowed to carry back the carbon copy of the answer sheet along with them.
(b) Thirty per cent of the total marks obtained at the minimum qualifying examination prescribed for the post shall be given to each candidate.
(c) Marks to a retrenched employee shall be awarded in the following manners subject to the maximum of 15 per cent marks:
(i) For the first completed year of service 5 marks
(ii) For the next and every completed year of 5 marks for each year service
(d) Marks to a sportsman shall be awarded in the following manner subject to the maximum of 5 per cent marks:
(i) If the candidate is a sportsman of International 5 per cent marks level
(ii) If the candidate is a sportsman of National level 4 percent marks
(iii) If the candidate is a sportsman of State level 3 per cent marks
(iv) If the candidate is a sportsman of University 2 per cent marks college/School level.
(e) In the case of candidates to be selected for any post form which typewriting or shorthand and typewriting has been prescribed as an essential qualification, there shall be a test of Hindi typewriting or Hindi Shorthand and typewriting as the case may be of twenty per cent marks only.
(4) (a) After the results of the written examination and other evaluations under Clauses (a),(b),(c),(d). and (e) of Sub rule (3) have been received and tabulated, the Selection committee shall having regard to the provisions of reservation referred to in Rule 4, hold an interview of candidates. The number of candidates to be called for interview shall be four times the number of the vacancies.
(b) The interview shall carry ten per cent marks. Marks at the interview shall be awarded by the Chairman and all other members separately in the following manner:
(i) Subject General Knowledge upto four
percent marks
(ii) Personality Assessment upto three
percent marks
(iii) Power of Expression upto three per
cent marks
Note- The total marks obtained by a candidate at the interview shall be determined by calculating the average of marks awarded to him by the Chairman and all the Members of the Selection committee separately.
(c) The Chairman and Members of the Selection Committee shall, in no case, be provided any information with regard to marks obtained by candidates under Clauses (a),(b), (c),(d) and (e) of Sub rule (3) at the time of interview.
(5) The marks obtained by each candidate at the interview under Sub rule (4) shall be added to the marks obtained under Sub rule(3). The final select list shall be prepared on the basis of aggregate of marks so arrived. If two or more candidates obtain equal marks in aggregate, the candidate obtaining higher marks in the written examination shall be placed higher in the select list. In case two or more candidates obtain equal marks in the written examination also, the candidate senior in age shall be placed higher in the select list. The number of the names in the list shall be larger (but not larger by more than twenty-five per cent) than the number of vacancies.
(6) The select list referred to in Sub rule (5) shall be forwarded to the appointing authority.
11. The aforesaid rule was amended vide U.P. Procedure for direct recruitment for group C Post (out side the purview of U.P.P.S.C.) (First Amendment) Rules 1998 (hereinafter referred to as "amended rules") Published in the Gazette dated 28.8.1998 and the entire Rule 5 of 1998 Rule was substituted by the said amended rules which reads as under:
5. Procedure for direct recruitment- (1) For making direct recruitment the Government shall publish the application form in daily newspapers having wide circulation.
(2) The appointing authority shall invite the applications for direct recruitment in the form published under Sub-rule (1) and notify the vacancies in the following manner:
(i) by issuing advertisement in daily newspapers having wide circulation,
(ii) by pasting the notice on the notice board of the office or by advertising through Radio/Television and other Employment newspaper, and
(iii) by notifying vacancies to the Employment Exchange.
(3) The application form shall not be published again while notifying the vacancies under Sub-rule (2). (4) The test for selection shall carry one hundred marks. The merit list of the candidates shall be prepared in the following manner-
(a) (i) there shall be an objective type written examination consisting of a single question paper which will include General Hindi, General Knowledge and General Studies. Forty percent of the percentage of marks obtained in the written examination shall be given to each candidate except those candidates to be selected for any post for which typewriting or shorthand and typewriting has been prescribed as an essential qualification. In the case of candidates to be selected for any post for which typewriting or shorthand and typewriting has been prescribed as an essential qualification twenty per cent of the percentage of marks obtained in the written examination shall be given to such candidates:
Provided that the posts for which some physical standards have been prescribed as essential qualification or as mode of recruitment for the post, the candidates shall be required to undergo prescribed physical tests before the written examination and only those candidates shall be allowed to appear in the test for selection who come up to the minimum standards prescribed for the post.
(ii) the question paper-cum-answer sheet (in duplicate) shall be provided to the candidates. When the examination is over, the candidates shall be allowed to carry back the carbon copy of the answer-sheet with them.
(b) thirty per cent of the percentage of marks obtained at the minimum qualifying examination prescribed for the post shall be given to each candidates.
(c) Marks to a retrenched employee shall be awarded in the following manner subject to maximum of fifteen percent marks of the total marks fixed for test for selection
(i) For the first completed year of service 5 marks
(ii) For the next and every completed years of service 5 marks for each year
(d) Marks to sportsman shall be awarded in the following manner subject to the maximum of five per cent marks of the total marks fixed for text for selection:
(i) If the candidate is a sportsman of International level 5 marks
(ii) If the candidate is a sportsman of National level 4 marks
(iii) If the candidate is a sportsman of State level 3 marks.
(iv) If the candidate is a sportsman of University, College/School level 2 marks
(e) In the case of candidates to be selected for any post for which typewriting or shorthand and typewriting has been prescribed as an essential qualification, there shall be a test of typewriting or shorthand and typewriting as the case may be. Twenty per cent of the percentage of marks obtained in the said test shall be given only to those candidates who have attained minimum speed, prescribed for typewriting of shorthand and typewriting, as the case may be. The number of candidates to be called for typewriting test or shorthand and typewriting test, as the case may be, shall be four times the number of the vacancies. For this purpose the merit list of candidates shall having regard to the provisions of reservation referred to in Rule 4 be made separately on the basis of marks obtained by them under Clauses (a), (b), (c) and (d).
(5) (a) After the results of the written examination and other examinations under clauses, (a), (b), (c), (d) and (e) of Sub rule (4) have been received and calculated, the Selection Committee shall, having regard to the provisions of reservation referred to in Rule 4 hold an interview. The number of candidates to be called for interview shall be four times the number of the vacancies. In the case of candidates to be selected for a post for which typewriting or shorthand and typewriting has been prescribed as an essential qualification only such candidates who qualify the typewriting test or shorthand and typewriting test as the case may be under Clause (e) of Sub-rule (4) shall be called for interview.
(b) The interview shall carry ten per cent marks of the total marks fixed for test of selection. Marks at the interview shall be awarded by the Chairman and all other Members separately in the following manner:
(i) Subject/General Knowledge Upto four marks (ii) Personality Assessment Upto three marks (iii) Power of Expression Upto three marks
Note:- The total marks obtained by a candidate at the interview shall be determined by calculating the average of marks awarded to him by the Chairman and the members of the Selection Committee separately.
(c) The Chairman and Members of the Selection Committee shall, in no case the provided any information with regard to marks obtained by candidates under Clause (a), (b), (c), (d) and (e) of Sub-rule (4) at the time of interview.
(6) The marks obtained by each candidates at the interview under Sub-rule (5) shall be added to the marks obtained under Sub-rule (4). The final select list shall be prepared on the basis of aggregate of marks so arrived. If two or more candidates obtained equal marks in aggregate the candidate obtaining higher marks in the written examination shall be placed higher in the select list. In case two or more candidates obtain equal marks in the written examination also, the candidate senior in age shall be placed higher in the select list. The number of the names in the list shall be larger (but not larger by more than twenty five per cent) than the number of vacancies.
(7) The select list referred to in Sub-rule (6) shall be forwarded to the appointing authority.
12. A perusal of the scheme of the rule as it was originally enacted on 9.6.98, it is evident that the rule framing authority provided that the merit list of the candidate shall be prepared by holding objective type written examination, interview, typing where it is essential minimum qualifying examination for the post, and where ever applicable if a candidates is retrenched employee or sportsman. The distribution of marks is as under:
(a) Written examination 40% (b) Marks obtained in minimum qualifying examination 30% (c) Interview 10% (d) Typing test (where it is prescribed as essential qualification) 20% (e) Retrenched employee upto 15% (f) Sportsman upto 5%
13. Therefore, excluding the candidates who are entitled to be the weightage of additional marks under the category "retrenched employee" and "sports man", the total marks under items a, b, c and (above) comes to 100 and in case of retrenched employee the same may go upto 115 and if he is sportsman, the same may come to 105. The typing test, therefore, was not a qualifying test but constitutes an integral part of assessment of merit of the candidates. It is further clear from Rule 5 (4) which provide that after the result of the written examination and other evaluations under clauses a, b, c, d, and e of Sub rule (3), the Selection Committee shall hold interview. Meaning thereby the marks have to be awarded against each item as provided under Sub rule 3 of Rule 5. This Court has no manner of doubt that typing and shorthand test was not a qualifying test and it did constitute an integral part of assessment of merit of the candidates. Further Sub rule (5) mention that the final selection shall arrive on the basis of marks under Sub-rules (3) and (4).
14. I have referred original rule only to show that there was no change in the scheme with respect of tying test in making it an integral part of assessment of merit of a candidate since the very beginning. The typing test of the said scheme has not undergone any change in the amended rule as well.
15. It is not disputed that in the case in hand, the amended Rule 5 shall apply. Therefore, now I come to Rule 5 as amended vide notification dated 28.8.98. The first change introduced by the amended Rule 5 in respect of assessment of merit is that it prescribe the total maximum marks for Selection as 100. The various items for which the marks are required to be awarded under Sub rule (4) of Rule 5 would not go beyond 100. The distribution of 100 marks under Sub-rule 4 of Rule 5 is as under:
(a) (1) Objective type written examination 40%
(i) Where typewriting or shorthand is not essential qualification
(ii) Where typewriting or shorthand is essential qualification
(b) Physical test where prescribed as essential qualification), the same would only be a qualifying test and only those candidates who qualify would be allowed to appear in the test for selection
(c) Marks obtained at the qualifying examination -30%
(d) Retrenched employee -15%
(e) Sports --5%
(f) Typing /shorthand test (where essential qualification) 20%
(g) Interview --10%
16. Therefore, the total of a, c, d, e and g (above) comes to 100.
17. The learned standing Counsel argued that Rule 5,(4)(e) show that those who would be called for such test shall be 4 times the number of vacancy. It further provides that 20% of the marks obtained in the said test shall be given only to those candidates who have attained the minimum speed prescribed for typing and shorthand and thus those candidates who attain minimum speed shall be allotted 20% obtained by them in the test i.e. written test and not the typing test. However, I do not find any reason to read Rule 5(4)(e) of amended rule in the manner as is being attempted to be read by the learned Standing counsel. In my view this attempt would violate the very scheme. Under Sub rule (4) there are five items under which marks are to be awarded which are provided in Clauses (a),(b), (c), (d) and (e) of Rule 5 (4). Under Clause (a) of Rule 4 a candidate is required to appear in the objective type test consists of single paper and whatever shall be the marks prescribed in the written examination, only 40% of such marks shall be taken for the purpose of merit. Under Rule 5(4)(a) where shorthand/typing test is essential, percentage would be reduced to 20%. For example if a candidate has secured 50 marks in the written test it would be taken as 20 where shorthand and typing test is not essential qualification and where it is so it would be, 10.
18. Under Rule 5(4)(b) marks have to be awarded on minimum qualifying examination marks. For example if the minimum qualifying is Intermediate and the candidate has secured 60% he would be allotted 18 marks being 30% thereof.
19. Under Rule 5(4)(c) if a candidate is a retrenched employee and he is entitled to weightage marks prescribed therefor the same shall be awarded in the manner stated under Rule 5(4)(c) but the same would not be more than 15% of the total marks fixed for the selection. Similarly, under Rule 5(4)(d), marks are awarded to be the category of sportsman subject to maximum of 5% fixed for selection.
20. Now under Rule 5(4)(e) which provides first the number of candidates who shall be called for typing i.e. It shall not be more than 4 times of the number of vacancies. For this purpose at the time of calling the candidates for typing and shorthand test the merit list shall be prepared on the basis of marks obtained under Clauses (a),(b) and (c) of Sub rule 4 of Rule 5. Thereafter the candidates who possess minimum speed, only they shall be awarded marks and those who fail to do so shall stand disqualified and shall not be awarded marks at all. The marks which are awarded under Clause (e) of Rule 5 (4), would be 20% of the marks obtained in the test. The words "marks obtained" in the "said test" means the test of typewriting and not the marks obtained under Clause (a), to (d) of Rule 5 (4). The logic is quite obvious, if a candidate does not possess minimum shorthand and typewriting speed which is an essential qualification, obviously, he lacks minimum essential qualification to qualify the test, and his case need not be proceeded further but those who possess minimum speed, should be awarded marks for such performance independently. It is further fortified from Sub rule (5) of Rule 5 where the merit list has to be prepared for interview and the same has to be based on the result and evaluation under Clause (a),(b),(c),(d) and (e) which also suggests that Clause (e) of Sub-rule 4 has a different and independent identity. What the respondent No. 1 has done in this case is that it has awarded 20% marks in written test and after typing test again 20% marks of written test have been added making the element of marks of Clause (a) as 40% and no marks have been awarded to the typing test. It is totally incorrect and in the teeth of Rule 5. From a bare reading of the said rule, I do not find any reason as to why a candidate who is much more proficient in typing/shorthand which is an essential qualification should not have a better position in such test. The typing test as such may not be the sole basis of assessment of merit but is independent and separate. The respondent No. 1, thus has committed serious error in making selection by not awarding any marks in typing test and to that extent the same cannot be sustained.
21. The contention of the learned Counsel for the respondent No. 2 that he is not responsible for any error committed by respondent No. 1 in making the selection and therefore, his appointment should not be [disturbed cannot be accepted for the simple reason that an illegality has been committed by respondent No. 1 in making selection of respondent No. 2 and the respondent No. 2 is the beneficiary of such illegality cannot be allowed to retain the same since it has resulted in discrimination and injustice to the petitioner. I, therefore, direct the respondent No. 1 to award marks to the respective candidates in typing test as provided under Rules 5(4)(d) to the extent of 20% and thereafter prepare merit list again and make appointments of the selected candidates accordingly. Since respondent No. 2 is working for the last few years, he may continue till the merit list is prepared afresh as per the directions made above, but it shall not confer any right upon him and his continuation would be till the fresh merit list is made by respondent No. 1 in the light of the directions issued above and shall be subject to the result thereof. It is also made clear that in case the preparation of merit list results or is likely to effect any other appointment, the respondent No. 1 shall pass necessary orders after giving show cause notice to such person. This exercise shall be completed within two months from the date of production of a certified copy of this order. The writ petition succeeds and is allowed with the above directions
22. There shall be no order as to costs.