Allahabad High Court
Manish Kumar Yadav And 49 Ors. vs State Of U.P. Thru Adll. Chief Secy. Home ... on 18 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 1986
Author: Alok Mathur
Bench: Munishwar Nath Bhandari, Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserve Judgment Court No. - 4 (1) Case :- SERVICE SINGLE No. - 6540 of 2019 Petitioner :- Manish Kumar Yadav And 49 Ors. Respondent :- State Of U.P. Thru Adll. Chief Secy. Home Lucknow And Ors. Counsel for Petitioner :- Sameer Kalia,Rajat Rajan Singh Counsel for Respondent :- C.S.C. Alongwith (2) Case :- SERVICE SINGLE No. - 7167 of 2019 Petitioner :- Pratiksha Singh And 44 Ors. Respondent :- State Of U.P. Thru Addl.Chief Secy. Home Lucknow And Ors. Counsel for Petitioner :- Sameer Kalia,Rajat Rajan Singh Counsel for Respondent :- C.S.C. (3) Case :- SERVICE SINGLE No. - 7259 of 2019 Petitioner :- Shubham Singh Chandravanshi And 199 Ors. Respondent :- State Of U.P. Thru Addl.Chief Secy. Home Lucknow And Ors. Counsel for Petitioner :- Sameer Kalia,Abhimanyu Singh,Rajat Rajan Singh Counsel for Respondent :- C.S.C. (4) Case :- SERVICE SINGLE No. - 7310 of 2019 Petitioner :- Sachin Singh Respondent :- State Of U.P. Thru Addl.Secy. Recruitment & Promotion & Anr. Counsel for Petitioner :- Dilip Kumar Pandey,Akhilesh Kumar Counsel for Respondent :- C.S.C. (5) Case :- SERVICE SINGLE No. - 7262 of 2019 Petitioner :- Ashutosh Tiwari And 146 Ors. Respondent :- State Of U.P. Thru Addl.Chief Secy. Home Lucknow And Ors. Counsel for Petitioner :- Sameer Kalia,Akash Shukla,Rajat Rajan Singh Counsel for Respondent :- C.S.C. (6) Case :- SERVICE SINGLE No. - 7261 of 2019 Petitioner :- Kuldeep Singh And 16 Ors. Respondent :- State Of U.P. Thru Addl.Chief Secy. Home Lucknow And Ors. Counsel for Petitioner :- Sameer Kalia,Rajat Rajan Singh,Varun Kumar Sharma Counsel for Respondent :- C.S.C. (7) Case :- SERVICE SINGLE No. - 8075 of 2019 Petitioner :- Akhilesh Kumar Respondent :- State Of U.P. Thru Addl.Chief Secy. Home Lucknow & Ors. Counsel for Petitioner :- Ram Singh Counsel for Respondent :- C.S.C. (8) Case :- SERVICE SINGLE No. - 7615 of 2019 Petitioner :- Ajeet Singh And Another Respondent :- State Of U.P.Thru Prin.Secy. Home Lucknow And Ors. Counsel for Petitioner :- Shiv Kumar,Rakesh Kumar Abhir Counsel for Respondent :- C.S.C. (9) Case :- SERVICE SINGLE No. - 7810 of 2019 Petitioner :- Sukhdeep Singh And Another Respondent :- State Of U.P.Thru Prin.Secy. Appointment Lucknow & Ors. Counsel for Petitioner :- Manoj Kumar Gupta,Swati Singh Rajawat Counsel for Respondent :- C.S.C. (10) Case :- SERVICE SINGLE No. - 8079 of 2019 Petitioner :- Ankit Shukla Respondent :- State Of U.P. Thru Addl.Chief Secy. Home Lucknow & Ors. Counsel for Petitioner :- Ram Singh Counsel for Respondent :- C.S.C. (11) Case :- SERVICE SINGLE No. - 8998 of 2019 Petitioner :- Bhupendra Kumar & Ors. Respondent :- State Of U.P. Thru. Addl. Chief Secy., Deptt. Of Home & Ors. Counsel for Petitioner :- M.P. Raju Counsel for Respondent :- C.S.C. (12) Case :- SERVICE SINGLE No. - 8312 of 2019 Petitioner :- Abhishek Singh Respondent :- State Of U.P. Thru Addl.Chief Secy. Home Lucknow & Ors. Counsel for Petitioner :- M.P. Raju Counsel for Respondent :- C.S.C. (13) Case :- SERVICE SINGLE No. - 8456 of 2019 Petitioner :- Abhishek Pratap Singh Respondent :- State Of U.P. Thru Addl.Chief Secy./Prin.Secy. Home Lko.&Ors Counsel for Petitioner :- Gaurav Mehrotra,Ravi Singh,Utsav Misra Counsel for Respondent :- C.S.C. (14) Case :- SERVICE SINGLE No. - 11817 of 2019 Petitioner :- Praveen Kumar Gupta And 18 Ors. Respondent :- State Of U.P. Thru Addl.Chief Secy.Home Lucknow And Ors. Counsel for Petitioner :- Meenakshi Singh Parihar,A.P. Singh,Pravin Kumar Singh Counsel for Respondent :- C.S.C. (15) Case :- SERVICE SINGLE No. - 12666 of 2019 Petitioner :- Ashutosh Narain Trivedi Respondent :- State Of U.P. Thru Addl.Chief Sec.Edu.(Basic) Lucknow & Anr. Counsel for Petitioner :- Ramesh Chandra Pandey,Pradyumn Shukla Counsel for Respondent :- C.S.C. (16) Case :- SERVICE SINGLE No. - 14137 of 2019 Petitioner :- Manoj Kumar Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Appointment & Ors. Counsel for Petitioner :- Prabhat Pankaj Tripathi,Neeraj Singh Counsel for Respondent :- C.S.C. (17) Case :- SERVICE SINGLE No. - 13466 of 2019 Petitioner :- Siddharth Mishra Respondent :- State Of U.P. Thru Addl.Chief Secy. Home Lucknow And Ors. Counsel for Petitioner :- Kuldeep Singh Kalhans Counsel for Respondent :- C.S.C. (18) Case :- SERVICE SINGLE No. - 12379 of 2019 Petitioner :- Amrendra Kumar Goswami And 11 Ors. Respondent :- State Of U.P. Thru Addl.Chief Secy.Home Lucknow And Ors. Counsel for Petitioner :- Sameer Kalia,Gantavya,Meha Rashmi Counsel for Respondent :- C.S.C. (19) Case :- SERVICE SINGLE No. - 10482 of 2019 Petitioner :- Aman Saini & 56 Others Respondent :- State Of U.P. Thru. Addl.Chief Secy.,Deptt.Of Home & 4 Ors. Counsel for Petitioner :- Sameer Kalia,Rajat Rajan Singh Counsel for Respondent :- C.S.C. (20) Case :- SERVICE SINGLE No. - 17193 of 2019 Petitioner :- Noor Akhtar Respondent :- State Of U.P. Thru.Addl.Chief Secy.,Deptt. Of Home,Lko.&Ors. Counsel for Petitioner :- Krishan Kanhaya Pal,Pooja Pal Counsel for Respondent :- C.S.C. (21) Case :- SERVICE SINGLE No. 19356 of 2019 Petitioner :- Himanshu Shukla And 3 Ors. Respondent :- State Of U.P. Thru Addl.Chief Secy.Home Lucknow And Ors. Counsel for Petitioner :- Meenakshi Singh Parihar Counsel for Respondent :- C.S.C. (22) Case :- SERVICE SINGLE No. - 23433 of 2019 Petitioner :- Sachin Tiwari Respondent :- State Of U.P. Thru Addl.Chief Secy./Prin.Secy. Home Lko.&Ors Counsel for Petitioner :- Umesh Kumar Srivastava,Raman Srivastava Counsel for Respondent :- C.S.C. Hon'ble Munishwar Nath Bhandari,J.
Hon'ble Alok Mathur,J.
(Delivered by Hon'ble Alok Mathur, J.)
1. Heard Sri S.K. Kalia learned Senior Advocate assisted by Sri Sameer Kalia and Sri Jaideep Narain Mathur, learned Senior Advocate appearing for the petitioners as well as learned Advocate General for the State and Dr. L.P. Mishra, learned counsel for the private respondents.
2. The final select list/result declared on 28.02.2019, for the recruitment conducted by the U.P. Police Promotion and Recruitment Board, Lucknow for the post of Sub Inspector (Civil Police), Platoon Commander (PAC), Fire Service Second Officer, Sub Inspector (Civil Police Female), has been challenged the petitioners in the instant petitions.
3. The brief facts of the case are that the opposite party no. 2 issued an advertisement dated 27.06.2016 for recruitment to the posts of Sub Inspector (Civil Police), Platoon Commander (PAC), Fire Service Second Officer and Sub Inspector (Civil Police Female). Item no. 4 of the advertisement provides the procedure of selection and the same categorically indicates that the aforesaid selection shall be conducted under the provisions of the Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service (First Amendment) Rules, 2015 (hereinafter referred to as "the Rules, 2015"). The aforesaid advertisement provides that examination shall be held on "On-line basis" and Item No. 4.5 thereof provides that there shall be four papers consisting of 100 marks each. Those papers would be (i) General Hindi (ii) Basic Law/Constitution/General Knowledge (iii) Numerical and Mental Ability Test (iv) Mental Aptitude Test/I.Q. Test/Reasoning. The aforesaid advertisement further provides that the candidates failing to obtain 50% marks in each of the above subjects shall not be eligible for recruitment.
4. The above advertisement was issued in pursuance to the requisition sent by the Director General of Police for filling the posts of Sub-Inspector Police (2400 Post of Sub-Inspector Male and 600 Post of Sub-Inspector Female) on 04.04.2016 by direct recruitment to U.P. Police Recruitment and Promotion Board, U.P., Lucknow (hereinafter referred to as "the Board") and the Director General had also sent requisition for 210 posts of Platoon Commander (P.A.C.) as well as 97 posts of Fire Service Second Officer on 05.05.2016 and 12.05.2016 respectively. Thus a total number of 3307 posts were advertised.
5. Upon receipt of the requisition for appointment to the post of the Sub-Inspector (Civil) (Male/Female) on 04.04.2016, for Platoon Commander (PAC) on 05.05.2016 and for Fire Service Second Officer on 12.05.2016 from the office of the Director General of Police U.P., the Board issued an advertisement on 17.06.2016 in prominent newspapers as well as on the official website of the Board, inviting on-line applications for selection and appointment on the posts of Sub Inspector (Civil Police), Platoon Commander (PAC), Fire Service Second Officer, Sub Inspector (Civil Police Female) in the Pay Scale of Rs.9300-34800 with Grade Pay of Rs.4200/-. Under Rule 15(a) of the Rules, 2015 notified on 03.12.2015.
6. Learned counsel for the petitioners have vehemently urged that process of evaluation of the written examination has been conducted contrary to the provisions contained in the Rules 2015 as well as Notification dated 28.06.2017, wherein it has been provided that selection would be made on the criteria of 50% as qualifying marks in the Written Examination while contrary to the above, the respondents have considered 50% normalized marks derived by applying Standardized Equi-Percentile Method to appear in the "Physical Standard/Efficiency Test".
7. Sri Jaideep Narain Mathur, learned Senior Advocate appearing for the petitioners submits that on the basis of notification dated 28.06.2017 it was provided that that candidates who did not score 50% marks would be disqualified and the candidates who scored 50% or more marks would be treated as eligible candidates and the respondents while allowing the candidates who did not scored 50% marks to participate in the Physical Efficiency Test and Medical Examination and subsequently being declared selected, committed gross illegality thereby vitiating the entire selection process.
8. Learned counsel for the petitioners has relied upon the judgments of the Hon'ble Apex Court passed in the case of Sanjay Singh and others Vs. U.P. Public Service Commission, Allahabad and Others, 2007 (3) SCC 720, in support of the contention that "scale or scaling marks cannot be considered to be marks awarded to the candidate in written examination and therefore, vehemently urged that scaling as adopted by the respondents patently violated the recruitment rules.
9. Sri H.P. Srivastava, learned Advocate General as well as Sri L.P. Mishra, Advocate appearing for the respondents submitted that total 6,30,926 candidates applied against the recruitment process 2016, started in pursuance of advertisement dated 17.06.2016. The Board considered the fact that huge number of candidates had applied for appearing online written examination in pursuance of advertisement dated 17.06.2016, and as such the Board found that there is requirement for conducting online examination on different dates, different shifts, different cities and different papers for maintaining transparency, quality and capacity in online written examination.
10. Due to conducting of online examination on different dates, shifts, cities and papers which had a varied level of difficulty, there was possibility in the difference of marks obtained by the candidates as they have appeared on different papers with different degrees and levels of difficulty. Considering the aforesaid aspect exercising the power vested under Rule 15(b) of the Rules, 2015, the Board had taken decision for conducting online examination on different dates and shifts by different papers and cities, the Board decided for applying the Standardized Equi-percentile Method for normalization of the score of the candidates. For that purpose advertisement dated 28.06.2017 was issued and uploaded on the website of the Board.
11. It is further submitted on behalf of the State respondents that the Board has been conferred with ample power under Rule 15 (b) of the Rules, 2015 to determine "its own procedure" for examination to be displayed on the website as was done by means of Notification dated 26.08.2017 which provided for the Standardized Equi-percentile Method for normalization of the marks.
12. It is next submitted that Notification dated 28.06.2017, was issued by the Board after due consideration of the fact that the written examination shall be held on different dates, cities, shifts and different questions papers in respect of subjects prescribed in the syllabus for the purposes of normalization of marks of each shift of the candidates, who appeared in the written examination keeping in view the difficulty level of each question paper, wherein the marks obtained by each candidate may increase or decrease depending upon the difficulty level of question paper on different dates, cities, shifts and questions papers, for which purpose the Board was of the considered view that Standardized Equi-percentile Method is most appropriate for the normalization of marks.
13. The written examination was held from 12.12.2017 to 23.12.2017 in 29 shifts in different cities and in January, 20108, February, 2018, March, 2018 and August, 2018 the Board issued answer keys of online written examination of each shift which wa available for downloading by the individual candidates to compare it with their response sheet and file objection, if any. Thereafter, considering the objections, so submitted by the candidates, the result of on-line written examination was declared on 30.05.2018 and final select list was declared on28.02.2019, in accordance with the merit and Rules on the basis of normalization process of scores of all the candidates which has been impugned in these writ petitions as afterthought.
14. Learned counsels appearing for the respondents submits that the petitioners had full knowledge about the application of Standardized Equi-percentile Method for nromalization of the score in written examination and they appeared in on-line examination but they had not challenged or questioned the aforesaid method of normalization before declaration of result on 28.02.2019.
15. The respondents have also opposed the writ petitions on the ground that the petitioners cannot be permitted now to challenge the selection procedure/ Standardized Equi-percentile Method, due to estoppel in the light of fact that the petitioners have participated in the selection process and did not raised any objection and thereafter on being unsuccessful they cannot be allowed to challenge the same selection process.
16. After hearing both the sides the judgment of the case was reserved on 05.09.2019. We were informed by the learned counsels appearing for the parties on 11.09.2019 that a coordinate Bench at Allahabad had already delivered its judgment with regard to the same selection process which was also impugned in a bunch of writ petitions filed at Allahabad. Subsequently, a copy of the judgment dated 11.09.2019 passed in the bunch of writ petitions, leading being Writ -A No. 23733 of 2018 - Atul Kumar Dwivedi and 108 Others Vs. State of U.P. and 2 Others (decided on 11.09.2019) was submitted.
17. We have perused the judgment passed by the coordinate Bench in the case of Atul Kumar Dwivedi (supra), whereby the select list dated 28.02.2019 has been set aside and the bunch of writ petitions has been allowed.
18. The issues raised by the petitioners in the present writ petitions have also been dealt in the case of Atul Kumar Dwivedi (supra) and for the sake of convenience certain relevant paragraphs are being quoted hereinbelow while adopting the ratio laid down in Atul Kumar Dwivedi (supra). The issues raised have been considered by the coordinate Bench in paragraph 64, which is quoted hereinbelow :
"64. The question that arises for our consideration is: (i) whether the Selection Board was within its power and authority in applying the normalized percentile score to determine the eligibility of the candidates or in the alternative whether the Selection Board transgressed its authority to alter/substitute the eligibility criteria (50% marks) mandated in Sub-clause (b) of Rule 15 by normalized score to non-suit, all such candidates from the recruitment process who obtained 50% marks and above; (ii) the scope of judicial review of the Standardized Equitable Percentile Method adopted by the Selection Board."
19. The aforesaid issue was further chiselled and in paragraph 84 the coordinate Bench observed as under :
"84. In the facts of the case at hand, the primary issue is as to whether the Selection Board was empowered to adopt the normalization equi-percentile method in scaling the raw marks obtained by the candidates, and thereafter, applying the normalized score to determine the eligibility by substituting/altering the '50% marks' prescribed in Sub-clause (b) of Rule 15 to non-suit the petitioners from the select list."
20. After considering the Notification dated 28.06.2017 as well as the Rules, 2015, the coordinate Bench in paragraphs 92 and 93 held as under :
"92. The Selection Board, in the instant case, however, erred in applying the normalized score in violation of the mandatory rule [Rule 15(b)] to determine the eligibility of a candidate to take the subsequent round of selection, instead of confining the normalized score to determine the inter-se merit of the candidates.
93. The members of the Selection Board or for that matter, any other Selection Committee, do not have the jurisdiction to lay down the criteria for selection unless they are authorised specifically in that regard by the rules made under Article 309. It is basically the function of the rule making authority to provide the qualification for selection. In the instant case, the rule making authority conferred limited power upon the Selection Board to determine the ''procedure of written examination', which would include evaluation of papers and to draw the select list in order to merit. The Selection Board has not been conferred power by the rule making authority to prescribe the criteria/eligibility (minimum marks) for selection, rather, the procedure of selection has been codified by the rule making authority which could not have been breached/altered by the Selection Board while exercising its limited power of determining the procedure of written examination."
21. In paragraph 103 the coordinate Bench further elaborated the issue which is quoted hereinbelow :
"103. We are also fortified in our conclusion while tracing the evolution of the Rules pertaining to the recruitment of Sub Inspector. The Recruitment Rules came to be amended on 3 December 2015. The selections have been made pursuant to the amended Rules. Sub clause (b) of Rule 15 provides that "candidates failing to obtain 50% marks in each of the subject shall not be eligible for recruitment". The same phrase was employed in Sub-clause (e) of Rule 15 that came to be amended. In other words, eligibility criteria was not altered or changed by rule making authority. The only change brought about by the amendment was that the procedure for written examination was entrusted upon the Selection Board exclusively by omitting Appendix-3 which prescribed the procedure of written examination. We are informed that the superseded Rule (prior to enactment of Recruitment Rules) governing the appointment and selection of Sub-Inspector, viz., "The Uttar Pradesh Sub-Inspector And Inspector (Civil Police) Service Rules, 2008", Rule 15(f) provided that the candidate ''who fails to obtain minimum 50% marks' in each subject shall not be eligible for recruitment. It is, thus, evident that the rule making authority was fully conscious that the candidates are required to score minimum marks (50%), failing which, they shall not be eligible for recruitment. The eligibility criteria was retained while promulgating Recruitment Rules. The Selection Board was not conferred the power and jurisdiction by the rule making authority to alter or amend the eligibility criteria. The Selection Board by the amended rules was vested with exclusive, but limited power to determine the procedure of the written examination, which includes evaluation of papers by adopting method of scaling to equalise the different levels of papers in examination held in multiple shifts and, accordingly, draw the select list. We accordingly find merit in the contention of the petitioners that Selection Board exceeded its authority by disqualifying the petitioners."
22. With regard to the arguments raised by either of the side as to whether the terminology used in the Rules, 2015 as well as Notification dated 28.06.2017, with regard to the eligibility being 50% marks can be read as 50 percentile, the coordinate Bench held in paragraph 108 as under :
"108. Percentiles, however, should not be confused with percentage. The latter is used to express fractions of a whole, while percentiles are the values below which a certain percentage of the data in a data set is found. In practical terms, there is a significant difference between the two. The percentage score reflects how well the student did in the exam itself, the percentile score reflects how well he did in comparison to other students. Percentile rank would, therefore, mean percentage of scores that fall at or below a given score. Usually written to the nearest whole percent and are divided into 100 equally sized groups. The lowest score is at the first percentile and the highest score is at the 99th percentile."
23. Having due regard to the facts and circumstances of the case and the provisions mandated by the Rules, 2015 as well as Notification dated 28.06.2017, while following the judgment of the coordinate bench in Atul Kumar Dwivedi (supra), the present writ petitions are allowed in terms of the above judgment with following order :
i) the select list dated 28 February, 2019 is set aside and quashed;
ii) the candidates having failed to obtain 50% marks (raw marks) in each subject are declared ineligible for recruitment/selection;
iii) the Selection Board shall prepare the select list in order of merit on normalized score, derived by Standardized Equi-Percentile Method;
iv) Selection Board to comply the order within six weeks from the date of filing of certified copy of this order and the selected candidates shall be sent for training.
24. No order as to costs.
Order Date :-18.10.2019 A.K. Singh/A. Verma