Uttarakhand High Court
Sonali Joshi vs State Of Uttarakhand And Others on 24 July, 2017
Author: Alok Singh
Bench: K.M. Joseph, Alok Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
WRIT PETITON (S/B) NO. 115 OF 2014
Nitin Kumar Baunthiyal ......Petitioner.
Versus
State of Uttarakhand and others. ...........Respondents
WRIT PETITON (S/B) NO. 114 OF 2014
Amit Kumar ......Petitioner.
Versus
State of Uttarakhand and others. ...........Respondents
WRIT PETITON (S/B) NO. 20 OF 2014
Sonali Joshi ......Petitioner.
Versus
State of Uttarakhand and others. ...........Respondents
WRIT PETITON (S/B) NO. 24 OF 2014
Prerna Nautiyal ......Petitioner.
Versus
State of Uttarakhand and others. ...........Respondents
WRIT PETITON (S/B) NO. 36 OF 2014
Ankita Kumar and another ......Petitioners
Versus
State of Uttarakhand and others. ...........Respondents
WRIT PETITON (S/B) NO. 37 OF 2014
Swati Singh Rajput and others ......Petitioners
Versus
State of Uttarakhand and others. ...........Respondents
WRIT PETITON (S/B) NO. 66 OF 2014
Vidhi Tiwari and others. ......Petitioners
Versus
State of Uttarakhand and others. ...........Respondents
&
WRIT PETITON (S/B) NO. 113 OF 2014
Sangeeta Dhayni ......Petitioner.
Versus
State of Uttarakhand and others. ...........Respondents
Mr. B.P.S. Mer, Mr. Jayvardhan Kandpal, and Mr. M.S. Bisht, Advocates for the
petitioners.
Mr. Pradeep Joshi, Standing Counsel for the State of Uttarakhand.
Mr. B.D. Kandpal and Mr. N.S. Pundir, Advocates for the Uttarakhand Public Service
Commission.
Dated: 24.07.2017
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble Alok Singh, J.
K.M. Joseph, C.J. (Oral) Since these petitions raise common issues, we are disposing of the same by the following common judgment.
22. We are referring to the facts of Writ Petition No. 115 of 2014 (S/B), which we are treating as the leading case. Respondent Uttarakand Public Service Commission issued advertisement dated 26.05.2012 inviting applications to the posts of Assistant Engineer (Civil) and Assistant Engineer (Mechanical) in six Departments. There is an addendum advertisement also dated 08.06.2012. It is the specific case of the petitioners that 41 posts of A.E. (Civil) in PWD, 118 posts of A.E. (Civil) in Irrigation Department, 1 post in Minor Irrigation, 15 posts in Jal Sansthan, 1 post in Medical Health and Family Welfare Department and 15 posts in Panchayati Raj and Rural Engineering Services were published. Thus, the total number of vacancies was 215.
3. The procedure of selection included participation in written examination and also in an interview. Petitioners were, however, not selected. Therefore, they seek the following prayers:
"1. Issue a writ or order in the nature of certiorari for quashing the impugned selection list dated 22-01-2014 issued by the respondent no. 2 for appointing the A.E. (Civil) pursuant to the advertisement dated 26-05-2012 and addendum advertisement dated 08-06-2012 (Annexure NO. 7).
2. Issue a writ, order or direction in the nature of mandamus directing the respondent no. 2 to consider the case of the petitioner and recommend the petitioner for appointment to an appropriate post of Assistant Engineer (Civil) after preparing selection list afresh in accordance with the conditions of advertisement regarding the examination and apply the provisions of reservation for the dependents of freedom fighters correctly."
4. The common objection, which is raised and which is projected from the arguments of Mr. B.P.S. Mer, learned counsel for the petitioners in Writ Petition Nos. 20 of 2014, 36 of 2014 and 37 of 2014, which is adopted by the learned counsel for the petitioners in other cases Mr. Jai Vardhan Kandpal and Mr. M.S. Bisht, is that contrary to law, the Commission has fixed cut off marks of 45 per cent for general category and 35 per cent for reserved category. There is no dispute that the petitioners have not secured the cut off marks, which were fixed by the Commission. The only contention, which is 3 pressed before us, is that extending the minimum cut off marks in the selection, in which, the petitioners participated and to which, these cases relate, was illegal. The argument of the learned counsel for the petitioners Mr. B.P.S. Mer is that no minimum cut off marks was fixed in terms of the earlier Rule of 2012, and in the year 2013, he points out that the Rules were made by the Commission, wherein, the concept of the minimum cut off marks was introduced.
5. The answer to the said contention, as projected by the learned counsel for the Commission Mr. B.D. Kandpal and Mr. N.S. Pundir, is as follows:
On 06.01.2011, the Uttarakhand Public Service Commission has determined that to be selected, a candidate should secure 45 per cent for general category and 35 per cent marks for the reserved category. Thereafter, on 14.03.2012, Rules were made by the Commission. The relevant Rule is Rule 4.3.1.3, translation of which has been made available to us by Mr. B.P.S. Mer. The same reads as follows:
"As per the aforesaid merit list, a candidate of general and reserved category should get minimum marks as fixed by the Public Service Commission. Those candidates, who will not get the said cut off marks, will not be selected."
6. Therefore, the contention of the Commission is that advertisement in this case was issued in May, 2012, after introduction of the Rules in March, 2012, and having regard to the decision taken by the Commission earlier on 06.01.2011, which was holding the field, the Commission was fully justified in applying the cut off marks and since the petitioners of these cases did not obtain the cut off marks, they were rightly not selected.
7. The answer of the learned counsel for the petitioners to this response by the Commission is as follows:
The decision taken on 06.01.2011 by the Commission was not formalized. It cannot be treated as a decision of the 4 Commission in absence of any formal order on the basis of the same. The next contention taken by Mr. B.P.S. Mer is that a perusal of the Rule, which we have already extracted, would show that what is contemplated is that the minimum cut off marks must be fixed by the Commission. He canvassed the position that after the Rules were made on 14.03.2012, no decision was taken by the Commission fixing the minimum cut off marks. He would submit that earlier decision taken on 06.01.2011 cannot be treated as a formal decision taken under the Rules made on 14.03.2012. He would also submit that the decision taken on 06.01.2011 was taken under the Rules, which would not hold the field after the new Rules framed on 14.03.2012. Therefore, the resultant position would be that since the advertisement was issued on 26.05.2012, under the Rules framed on 14.03.2012, no cut off marks could have been fixed.
8. Our attention is drawn to Paragaraph 10 of the counter affidavit filed in Writ Petition No. 115 of 2014 (S/B), which reads as follows:
"10. That it may be stated that in accordance to the provisions of Uttarakhand Public Service Commission examination result preparation procedure Rules, 2012 the minimum qualifying marks for selection is fixed in accordance to the provision of Rule 4.3.1(a)(3)."
9. It is emphasized by Mr. B.P.S. Mer that there is no decision taken on the basis of the Rule 4.3.1.3. Next Mr. B.P.S. Mer, learned counsel for the petitioners would draw our attention to Clause 18 (4) of the Advertisement, English translation of which would be that those persons, who are successful in the written examination, will be called for the interview. Therefore, he would submit that no cut off marks was fixed. Therefore, this is inconsistent with the case of the Commission that the cut off marks were applicable for the 2012 selection. The next circumstance relied on by the learned counsel for the petitioners Mr. B.P.S. Mer is Annexure -5 to Writ Petition No. 36 of 2014 (S/B). The Commission has brought out the cut off marks fixed for various categories, including Uttarakhand Women. He 5 would point out that with reference to Uttarakhand Women, the cut off marks is shown as 96.25. He would complain that the marks fixed for the written examination were 750 and the marks fixed for the interview were 100. He would, therefore, pose a question, if indeed, there was a cut off marks fixed, how could 96.25 be fixed as a cut off marks for Uttarakhand Women as 45 per cent of 750 marks would be much higher than 96.25 marks. This is pointed out to be clinching circumstance that actually, the Commission also did not apply the cut off marks for the 2012 selection. The answer to this is given by Mr. B.D. Kandpal, learned counsel for the Commission. He would also point out that the Public Service Commission, which is a recruiting body, has two methods of selection, depending on the service rules concerned. For some posts, selection is to be done only by conducting interview. This is covered by Rule 8(2). He would point out that in such circumstance, when there are 1 to 5 vacancies, five times the number of vacancies are called for the interview. This means that if there are five vacancies, twenty five candidates will be called for the interview. If the number of vacancies is between six to ten, four times the number of vacancies the candidates are called for the interview. If the number of vacancies is eleven or more, three times the number of vacancies the candidates are called for the interview. In other method, namely, when merit is to be assessed on the basis of performance in the written examination followed by the interview, and with the preliminary examination, the number of persons to be called for the main examination is to be decided in the ratio of 1:15. This means, if there is one vacancy, fifteen candidates will be called in the main examination. If there is a main examination followed by an interview, then also the same ratio will be followed. When the written examination is followed by an interview, without there being a preliminary examination, then it is pointed out that the same ratio is followed as to the number of the candidates to be called for the interview as is followed in the Rule. This means that 1 to 5, five times are called, between 6 to 10, four times are called. Also he points out that all those candidates, who have obtained the same 6 marks, as has been obtained by the last candidate falling in this method, are also called for the interview. The cut off marks, which is fixed by the decision dated 06.01.2011 and which is countenanced in Rule 4.3.1.3 is applied only at the stage after the candidates undergo the main examination followed by the interview. The petitioners in these cases, in other words, are those persons, who did not get the cut off marks on 06.01.2011, read in the context of Rule 4.3.1.3 after the marks, which they obtained in the main examination were added to the marks, which they obtained in the interview. Petitioners have all been called for the interview. He would further submit that as far as the specific reference to the actual cut off marks in the 2013 Rules is concerned, it is merely clarificatory. Also, he would submit that a change has been brought about insofar as in regard to the cut off marks for OBC; it has been increased to 40 per cent from 35 per cent; whereas for the Scheduled Castes and Scheduled Tribes, the same remains 35 per cent and for the General Category, also it remains as 45 per cent. He would also submit that actually the Rules have been made under Section 11 of the Uttar Pradesh State Public Service Commission (Regulation of Procedure) Act, 1985, which reads as follows:
"11. Rule making power. (1) The Commission may make rules not inconsistent with the provisions of this Act for the regulation of its procedure.
(2) The Commission may, if it thinks fit in the public interest, direct that the said rules or any part thereof shall not be published."
10. He would also submit that the allegation of Mr. B.PS Mer that the decision taken on 06.01.2011 was made under the earlier Rules and they will not remain after the new Rules came into force in 2013, also cannot hold water as there were no earlier Rules and the 2012 Rules do not refer to the new Rules. The learned counsel for the petitioners Mr. B.P.S. Mer points out that even if it is the Public Service Commission, it cannot act against the Rules. In this regard, learned counsel for the petitioners would also rely on paragraph 11 of the decision of the Hon'ble Apex Court in the case of State of Punjab 7 and Others vs. Manjit Singh and others reported in (2003) 11 SCC 559, which reads as under:
"11. In the case in hand, it was not for the Commission to have fixed any cut-off marks in respect of the reserved category candidates. The result has evidently been that candidates otherwise qualified for interview stand rejected on the basis of merit say, they do not have up-to- the-mark merit as prescribed by the Commission. The selection was by interview of the eligible candidates. It is certainly the responsibility of the Commission to make the selection of efficient people amongst those who are eligible for consideration. The unsuitable candidates could well be rejected in the selection by the interview. It is not the question of subservience but there are certain matters of policies, on which the decision is to be taken by the Government. The Commission derives its powers under Article 320 of the Constitution as well as its limits too. Independent and fair working of the Commission is of utmost importance. It is also not supposed to function under any pressure of the Government, as submitted on behalf of the appellant Commission. But at the same time it has to conform to the provisions of the law and has also to abide by the rules and regulations on the subject and to take into account the policy decisions which are within the domain of the State Government. It cannot impose its own policy decision in a matter beyond its purview."
11 The selection, in this case, has been made by the Public Service Commission. Public Service Commission is a constitutional body. It is an independent autonomous body. Founding fathers contemplated that recruitment to various services, in particular public service in the State is best done by it being entrusted to the autonomous constitutional body. The Commission discharges an onerous function, inasmuch as, it is entrusted with selection of thousands of vacancies coming under various Departments of the State and other functions entrusted to it by other enactments and also in respect of other bodies. So, we cannot begin with the presumption when their actions are challenged that they are flawed. On the other hand, some margin is to be accorded to their action, and unless and until it is demonstrably, palpably contrary to a constitutional 8 provision or any statutory provision, the Court would be loathe to interfere with their selection.
12. In this case, as we have noticed, the only contention raised on behalf of the petitioners is that despite there being no minimum cut off marks fixed in respect of 2012 selection, the Commission has not selected the petitioners, for the reason that they have not obtained the cut off marks. In the matter it is necessary to clear the preliminary ground as is sought to be projected by Mr. B.P.S. Mer, learned counsel for the petitioners. The first ground, we must advert to is what is sought to be projected from out of the contents of Page 52 of Writ Petition No. 36 of 2014 (S/B). In this case, it is noteworthy that the selection was done on the basis of the main examination followed by the interview. 750 marks were allotted for the main examination, while 100 marks were allocated for the purpose of interview. As per the Rules, which has been made by the Commission, in exercise of the Uttar Pradesh State Public Service Commission (Regulation of Procedure) Act, 1985, which empowers it to make Rules relating to the procedure of selection, in a case, where there is a main examination followed by an interview, the Commission invites five times the number of vacancies, where the vacancies are between 1 & 5; four times the number of vacancies, where the vacancies are between 6 & 10; and three times the number of vacancies, where the vacancies are eleven or more. This does not involve fixation of any cut off marks. Therefore, what has happened is, applying the said ratio for the purpose of deciding the number of persons to be called for the interview, the Commission has fixed various cut off marks for various categories. In respect of the category, for instance, of Uttarakhand Women, 96.25 marks have been fixed as the cut off marks. This has absolutely nothing to do with the cut off marks, which is the subject matter of controversy in these cases flowing from the decision dated 06.01.2011, followed by Rule 4.3.1.3. Here, the Commission was only to apply the ratio, which we have adverted to, which is dependent on the number of vacancies. Separate marks were fixed, which became necessary as all 9 the candidates, who obtained that marks would also be called for the interview. Therefore, this has nothing to do with the cut off marks and entire argument of Sri B.P.S. Mer that the marks, which are indicated in the said document (Annexure-5 to Writ Petition No. 36 of 2014(S/B)), disprove or completely demolish the case of the respondents cannot be accepted.
13. The next contention, which we may notice, is about Clause 18 (4) of the Advertisement. He would submit that Clause 18(4) indicates that all those candidates, who are successful in the written examination, will be called for the interview. Read alone in isolation, the Advertisement would yield probably the position, which is sought to be canvassed by the petitioners, but an advertisement must also be read by placing it side by side the Rules applicable. Under the Rules applicable, the number of persons to be called for the interview is determined with reference to the ratio, which we have already indicated, and it is in the context of the number of the vacancies, the persons, whose marks were different, they were called for the interview. In other words, from top down, there are candidates depending on their merit and when they arrive at the number of the candidates in terms of the ratio fixed under the Rules for being called for the interview, a line is drawn and all those candidates, below that line, who have obtained the marks obtained by the last person eligible under the ratio, are also called for the interview. This, in our view, does not involve application again of the cut off marks, which is objected to by the petitioners allegedly covered by the decision dated 06.01.2011 and the Rules made in 2012. In other words, the argument based on Clause 18(4) of the Advertisement also fails.
14. Coming to the main issue, which is projected by Mr. B.P.S. Mer and the learned counsel for other petitioners, who adopt his arguments, that there were no cut off marks fixed under the Rules, we are afraid that the argument is misconceived. A decision was taken by the Public Service Commission on 06.01.2011. The decision was to the effect that the general category must secure 45 per cent and 10 the reserved category should get 35 per cent marks. This was apart from taking the decision to appoint a counsel for the Commission. Incidentally, one of the learned counsel for the Commission, who is appearing in these cases, is appointed. The argument appears to be that though such a decision was taken by the Commission; whereas in the case of the appointment of the counsel, a formal order of appointment was given, no formal order was issued by the Commission formally. Therefore, the absence of a formal decision, according to the learned counsel for the petitioners afflicts the decision with a fatal blemish; in that, it is not enforceable as such. We are afraid that this argument is carrying things too far. The substance of the matter is that the Commission, which is considered as a constitutional body, has taken a decision to apply the cut off marks of 45 per cent and 35 per cent for general category and reserved category respectively. The next development to be noticed is that Rules were made under the powers given under Section 11 of the Uttar Pradesh State Public Service Commission (Regulation of Procedure) Act, 1985. The relevant Rule is contained in Clause 4.3.1.3, which we have already extracted.
15. The Rule specifically contemplates preparation of a merit list. That the candidates in order to be selected from out of the merit list should get the minimum marks, is the next inevitable and reasonable meaning of the Rule. The candidates are divided in two categories. The first is General Category and the second is Reserved Category. The next result yielded on an interpretation of the Rule is that the candidate should get the minimum cut off marks, as fixed by the Public Service Commission. It is in this area that Mr. B.P.S. Mer, learned counsel for the petitioners seeks to introduce controversy. He would submit that the Rules should be limited to the meaning that after framing of the Rules, the Commission should fix the minimum marks for the General Category and Reserved Category respectively. That not having been done, for the 2012 selection it must be taken that there was no cut off marks for the General Category or the Reserved 11 Category. We would think that this interpretation does not appeal to us.
16. The Rules should receive a reasonable interpretation. The Rules should receive an interpretation, which makes it workable. The words used are "as fixed by the Public Service Commission". The time element is not predicated with any clarity, but we have before us a decision, which has already been taken by the Commission itself, fixing the cut off marks on 06.01.2011. The result of accepting the petitioners' argument would be that we would have to completely render ineffective the decision taken by the Commission on 06.01.2011. Apparently, the understanding of the Commission was that a decision is already taken fixing the cut off marks by the Commission itself. When the Rules were made, the matter became more and more clear that the cut off marks fixed by the Commission on 06.01.2011 is the cut off marks fixed within meaning of Rule 4.3.1.3. The Rule does not say that the cut off marks is to be the marks, which is to be fixed in the future. It also does not say, no doubt, that the cut off marks, which is fixed earlier. In absence of any precise time element, we would have to necessarily place a reasonable interpretation of the Rules. Undoubtedly, the advertisement and the selection took place after the formulation of both the Rules on 14.03.2012 and after the decision taken by the Commission on 06.01.2011. We are of the view that the proper way to interpret the matter would be that in the Rules, what is contemplated, is that the Public Service Commission having taken a decision on 06.01.2011, it had fixed the cut off marks for the General and the Reserved Category and it is not necessary to again fix the cut off marks after enactment of the Rules. Therefore, taking the decision rendered on 06.01.2011 and the Rules, which are enacted on 14.03.2012, we are of the clear view that this is a case, where the Commission was fully justified in applying the minimum cut off marks for the selection, which took place after the enactment of the Rules. Any other view would result in anomalous and unreasonable results. There is no complaint that the cut off marks has been fixed in an arbitrary or capricious manner. It is 12 apparent that the cut off marks has been fixed not at the stage of holding the main examination, but the cut off marks has been fixed after the holding of the interview, by adding the marks obtained in the written examination in the marks obtained in the interview. At that stage, the cut off marks were applied and all the petitioners, who did not obtain the cut off marks as per the decision taken on 06.01.2011, read in conjunction with Rules made on 14.03.2012, have been ousted and this elimination of the petitioners must strictly be taken to be as per law. We cannot hold that the Commission has acted contrary to the Rules.
17. In this case, the only further question to be answered is the reference at the last level by Mr. B.P.S. Mer, learned counsel for the petitioners to the decision of the Hon'ble Apex Court in the case of State of Punjab and Others vs. Manjit Singh and others reported in (2003) 11 SCC 559. It is necessary to notice the facts:
The Public Service Commission issued an advertisement for recruitment of 500 Medical Officers. Some were reserved in various categories. The prescribed mode of selection was only interview of eligible candidates on the basis of their education qualification, but the Commission conducted a written screening test with a view to shortlist the number of candidates to bring it to the ratio of 3:5 candidates per vacancy. More importantly, it fixed 45 % cut- off marks for the general category candidates and 40% cut-off marks for SC candidates for their consideration for the selection. It was this fixing of cut off marks by the Commission, which was held unreasonable by the High Court. In this case, the Hon'ble Apex Court proceeded to hold what is stated in paragraph 11, which we have adverted to. We must notice paragraphs 7, 8, 9 and 10 also:
"7. Now adverting to the point under consideration, it may be observed that so far the powers and functions of the Commission in shortlisting of candidates are concerned, there can certainly be no doubt about it. Say, for example, 10,000 candidates apply for recruitment to 100 posts, it would obviously not be possible to take full test/examination and interview of such large number of applicants, though eligible. In that event shortlisting of 13 the candidates by screening out those, in respect of whom it would serve no purpose to call them for further test, may be excluded by adopting the method of screening test. Generally speaking, a ratio of 3:5 candidates for one post is normally accepted depending upon the number of seats. Therefore, for 100 posts the selecting body may in order of merit take out about first 500 candidates for further tests/interview. The rest of the candidates would be screened out. No candidate excluded by adopting such a method for shortlisting can raise any grievance whatsoever.
8. But for such shortlisting as indicated above, it is not necessary to fix any minimum qualifying marks. Any candidate on the top of the list at number 1 down upto 500 would obviously constitute the shortlisted zone of consideration for selection. For the purpose of elaboration it may be observed that in case some cut-off marks are fixed in the name of shortlisting of the candidates and the number of candidates obtaining such minimum marks, suppose is less than 100 in that event screening test itself will amount to a selection by excluding those who though possess the prescribed qualification and are eligible for consideration but they would be out of the field of consideration by reason of not crossing the cut-off marks as may be fixed by the recruiting body. This would not be a case of shortlisting. In shortlisting, as observed above, any number of candidates required in certain proportion of the number of vacancies, may be shortlisted in order of merit from Serial No. 1 upto the number of candidates required.
9. In the present case, the stand of the appellant Commission is that for medical services where the members of service have to deal with the health and life of the people, they must have some minimum standard of efficiency and it is the bounden duty of the Commission to ensure the same. It is perhaps with this view in mind that the Commission fixed 45% minimum qualifying cut- off marks for general category candidates and 40% cut- off marks for Scheduled Caste candidates. We feel, here lies the fallacy in the whole reasoning of the Commission. It is no doubt true that the Commission is an independent and autonomous body and has to work without influence of any authority or the Government. It is rather under duty to act independently. But at the same time the fact cannot be lost sight of that the State Government is competent to lay down the qualifications for differernt posts, and frame rules for the purpose or take policy decisions which may of course not be against the law. In this context, we may refer to the provisions contained under Article 320 of the Constitution. It reads as under :14
"Article 320. - Functions of Public Service Commissions- (1) It shall be the duty of the Union and the State public Service Commissions to conduct examinations for appointments to the services of the Union and the services of the State respectively.
(2) It shall also be the duty of the Union Public Service Commission, if requested by any two or more States to do, to assist those States in framing and operating schemes of joint recruitment for any services for which candidates possessing special qualifications are required. (3) The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted -
(a) on all matters relating to methods of recruitment to civil services and for civil posts;
(b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers;
(c) on all disciplinary matters, affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters;
(d) on any claim by or in respect of a person who is serving or has served under the Government of India or the Government of a State or under the Crown in India or under the Government of Indian State, in a civil capacity, that any costs incurred by him in defending legal proceedings instituted against him in respect of acts done or purporting to be done in the execution of his duty should be paid out of the Consolidated Fund of India, or, as the case may be, out of the Consolidated Fund of the State.
(e) on any claim for the award of a pension in respect of injuries sustained by a person while serving under the Govt. of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, and any question as to the amount of any such award, and it shall be the duty of a Public Service Commission to advise on any matter so referred to them and on any other matter which the President, or, as the case may be, the Governor of the State may refer to them:
Provided that the President as respects the all-India services and also as respects other services and posts in connection with the affairs of the Union and the Governor as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally or in any particular class of case or in any 15 particular circumstances, it shall not be necessary for a Public Service Commission to be consulted. (4) Nothing in clause (3) shall require a Public Service Commission to be consulted as respects the manner in which any provision referred to in clause (4) of article 16 may be made or as respects the manner in which effect may be given to the provisions of article 335. (5) All regulations made under the proviso to clause (3) by the President or the Governor of a State shall be laid for not less than fourteen days before each House of Parliament or the House or each House of the Legislature of the State, as the case may be, as soon as possible after they are made and shall be subject to such modifications, whether by way of repeal or amendment, as both Houses of Parliament or the House or both Houses of Legislature of the State may make during the session in which they are so laid."
It is to be noted that under clause (3), the Union Public Service Commission or the State Public Service Commission, has to be consulted by the Government relating to methods of recruitment in civil services and for civil posts, promotions and transfers as well as about suitability of candidates etc. The consultation may also be in regard to disciplinary' matters affecting a person serving under the Government. We then find that clause (4) particularly provides that nothing in clause (3) shall require consultation of the Commission in respect to the manner in which any provision referred to in Article 16(4) may be made or the manner in which the effect may be given to the provisions of Article 335. We may peruse clause (4) of Article 16 and Article 335. They read as follows :
"16(4)-Nothing in the article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
* * *
335.-Claims of Scheduled Castes and Scheduled Tribes to services and posts-The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration in the making of appointments to services and posts in connection with the affairs of the Union or of a State:
Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of 16 promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State."
Article 16(4) deals with Reservations and Article 335 pertains to consideration of reservation consistent with maintenance of efficiency of the administration. As indicated earlier, clause (4) of Article 320 clearly provides that consultation of the Commission would not be necessary in the matters relating to Articles 16(4) and
335. Therefore, it would be a matter of policy to be decided by the State Government as to what measures, if necessary, may be provided regarding reservations vis-a- vis maintenance of efficiency in services. Where no special qualification or any prescribed standard of efficiency over and above the eligibility criteria is provided by the Rules or the State, it would not be for the Commission to impose any extra qualification/standard supposedly for maintaining minimum efficiency which, it thinks, may be necessary. No consultation with the commission, in such matters, is envisaged in view of Clause (4) of Article 320 of the Constitution.
10. As observed earlier, for the purpose of shortlisting it would not at all be necessary to provide cut-off marks. Any number of given candidates could be taken out from the top of the list upto the number of the candidates required in order of merit. For example, there may be a situation where more than required number of candidates may obtain marks above the cutoff marks say for example out of 10,000 if 8,000 or 6,000 candidates obtain 45% marks then all of them may have to be called for further tests and interview etc. It would in that event not serve the purpose of shortlisting by this method to obtain the given ratio of candidates, and the vacancy available. For 100 vacancies at the most 500 candidates need be called. If that is so any candidate who is otherwise eligible upto the 500th position whatever be the percentage above or below the fixed percentage would be eligible to be called for further tests. Thus the purpose of shortlisting would be achieved without prescribing any minimum cut-off marks."
18. We may notice that, as contended by Mr. B.D. Kandpal, they have not applied any cut off marks; this is not a case, where the preliminary examination was held. In this case, main examination was held followed by the interview. In the main examination, no cut off marks of the type, which is taken exception to by the Hon'ble Apex Court, was fixed by the Commission. Instead, the candidates 17 have been called on the basis of certain ratio, which is also pre- announced and fixed under the Rules. Secondly, we may notice what is the case of the petitioners in this regard. The ground taken in the writ petition (Writ Petition No. 36 of 2014 (S/B)), which we notice, inter alia, is that in the advertisement and the Rules, there is no cut off marks or criteria laid down in the beginning of the selection process and the only criteria fixed was that only those candidates shall be called for interview, who will pass the written examination. Ground 'H' reads as under:
"H. Because it is pertinent to mention here that in the advertisement and rules, there is no cut of marks or criteria was laid down at the beginning of the selection process, the only criteria was fixed that only those candidates shall be called for interview who will passed the written examination."
19. It is further contended that after the selection was started, in between respondent no. 7 has changed the Rule of recruitment. We do not have before us what are the Rules, which are prescribed by the employer and whether the Commission is going against the same. The Hon'ble Apex Court also has specifically noted that it is certainly the responsibility of the Commission to make selection of efficient people, amongst those, who are eligible for consideration. We cannot, therefore, hold that this is a case, which involves the Commission acting contrary to the Rules. In fact, the very case of the petitioners is that since 2013, the Rules have been made by the Commission, where the cut off marks have also expressly been provided and, therefore, the selection for 2012 was bad because it was not so stipulated in the Rules made by the Commission. Therefore, we need not be detained by this argument any further.
20. We may also notice the participation of the petitioners in the selection procedure and there is no challenge to the Rules or the decision taken on 06.01.2011.
21. The upshot of the above discussion is that the petitioners have not been selected as they did not get the cut off marks, which 18 was fixed by the Commission for the stage, which is arrived at after following the main examination along with the interview. No cut off marks was fixed of the type, which is objectionable in law at the time of holding the main examination and all that happened was that the candidates were selected on the basis of merit in a certain ratio for being considered, which did not involve applying the cut off marks, which is laid down in the decision dated 06.01.2011 read with the Rule 4.3.1.3. The writ petitions fail and the same are dismissed. No order as to costs.
(Alok Singh, J.) (K.M. Joseph, C.J.)
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