Allahabad High Court
Nagesh Chandra Kesharwani And 26 Others vs State Of U.P. And 11 Others on 18 November, 2019
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 39 Case :- WRIT - A No. - 14179 of 2019 Petitioner :- Nagesh Chandra Kesharwani And 26 Others Respondent :- State Of U.P. And 11 Others Counsel for Petitioner :- Seemant Singh Counsel for Respondent :- C.S.C.,M.N. Singh Connected with Case :- WRIT - A No. - 14302 of 2019 Petitioner :- Dr. Anuj Kumar Singh And 6 Others Respondent :- State of U.P. and Another Counsel for Petitioner :- Aishwarya Pratap Singh Counsel for Respondent :- C.S.C.,M.N. Singh And Case :- WRIT - A No. - 14433 of 2019 Petitioner :- Namo Narayan And 3 Others Respondent :- Uttar Pradesh Public Service Commission Counsel for Petitioner :- Chandra Dutt,Pradeep Verma Counsel for Respondent :- M.N. Singh And Case :- WRIT - A No. - 14788 of 2019 Petitioner :- Rakesh Kumar Singh And 4 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ram Bachan Yadav Counsel for Respondent :- C.S.C.,M.N. Singh And Case :- WRIT - A No. - 14847 of 2019 Petitioner :- Girraj Singh And Another Respondent :- State of U.P. and Another Counsel for Petitioner :- Saumya Mandhyan Counsel for Respondent :- C.S.C. And Case :- WRIT - A No. - 15170 of 2019 Petitioner :- Vikash Kumar Agrawal And Another Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Chandan Agarwal,Anshul Kumar Singhal Counsel for Respondent :- C.S.C.,M.N. Singh And Case :- WRIT - A No. - 15381 of 2019 Petitioner :- Manoj Kumar Sharma And 12 Others Respondent :- State Of U.P. And 11 Others Counsel for Petitioner :- Seemant Singh Counsel for Respondent :- C.S.C.,M.N. Singh And Case :- WRIT - A No. - 15438 of 2019 Petitioner :- Atul Kumar Shukla Respondent :- State Of U.P. And 9 Others Counsel for Petitioner :- Santosh Kumar Mishra Counsel for Respondent :- C.S.C. And Case :- WRIT - A No. - 15499 of 2019 Petitioner :- Syed Shahid Raza And 6 Others Respondent :- State Of U.P. And 11 Others Counsel for Petitioner :- Santosh Singh,Bhanu Pratap Verma,Lakshmi Kant Singh Counsel for Respondent :- C.S.C. And Case :- WRIT - A No. - 15578 of 2019 Petitioner :- Vinay Kumar Pandey And 2 Others Respondent :- State Of U.P. And 9 Others Counsel for Petitioner :- Avadhesh Kumar Upadhyay,Ashish Pandey Counsel for Respondent :- C.S.C. And Case :- WRIT - A No. - 15833 of 2019 Petitioner :- Goutam Kumar Respondent :- Uttar Pradesh Public Service Commission Through Its Secretary Prayagraj, Counsel for Petitioner :- Prashant Mishra Counsel for Respondent :- M.N. Singh And Case :- WRIT - A No. - 15906 of 2019 Petitioner :- Neha Purwar Respondent :- State of U.P. and Another Counsel for Petitioner :- Jai Singh Parihar Counsel for Respondent :- C.S.C.,M.N. Singh,F.A. Ansari And Case :- WRIT - A No. - 16024 of 2019 Petitioner :- Ankur Sharma Respondent :- State of U.P. and Another Counsel for Petitioner :- Rakesh Kumar Garg,M.N. Singh Counsel for Respondent :- C.S.C.,Fuzail Ahmad Ansari And Case :- WRIT - A No. - 16167 of 2019 Petitioner :- Anand Kumar Sharma Respondent :- Uttar Pradesh Public Service Commission And Another Counsel for Petitioner :- Subhash Chandra Tiwari Counsel for Respondent :- M.N. Singh And Case :- WRIT - A No. - 16498 of 2019 Petitioner :- Himanshu Yadava Respondent :- State of U.P. and Another Counsel for Petitioner :- Rajendra Kumar Yadav Counsel for Respondent :- C.S.C.,M.N. Singh And Case :- WRIT - A No. - 17580 of 2019 Petitioner :- Abhay Kumar Singh Respondent :- State Of U.P. And 11 Others Counsel for Petitioner :- Ramsagar Yadav,Brij Raj Counsel for Respondent :- C.S.C.,M.N. Singh And Case :- WRIT - A No. - 17202 of 2019 Petitioner :- Saubhagya Tiwari Respondent :- State Of U P And 11 Others Counsel for Petitioner :- Neeraj Singh Counsel for Respondent :- C.S.C.,M.N. Singh And Case :- WRIT - A No. - 15008 of 2019 Petitioner :- Mayank Maheshwari And 6 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Siddharth Khare,Ashok Khare, Sr. Advocate Counsel for Respondent :- C.S.C.,M.N. Singh Hon'ble Ashwani Kumar Mishra,J.
1. Petitioners, in this bunch of writ petitions, are aggrieved by their non-selection for appointment to the post of Assistant Statistical Officer as they have failed to secure minimum marks in the interview. The jurisdiction of Public Service Commission to fix minimum marks for qualifying interview is primarily questioned in all the writ petitions. All the petitions have been heard together and are being decided by this common judgment. Writ Petition No.14179 of 2019 (Nagesh Chandra Kesharwani and 26 Others Vs. State of U.P. and 11 Others) is taken as the lead case.
2. Uttar Pradesh Public Service Commission (hereinafter referred to as ''the Commission') issued advertisement No.4 of 2014-15 dated 17th March, 2015 initiating recruitment to large number of vacancies occurring in different departments of the State of Uttar Pradesh. Controversy in this bunch of petitions, however, is confined to 373 posts of Assistant Statistical Officer (general recruitment) in Economic and Statistic Division, State Planning Institution U.P. A total number of 7291 applications were received by the Commission against 373 advertised posts of Assistant Statistical Officer. The recruitment exercise consisted of a screening test followed by interview. 1261 candidates could qualify screening test and were accordingly called for interview. Out of those 1261 candidates only 1133 candidates could submit their educational and other eligibility documents to the Commission. A committee was constituted to examine eligibility of candidates who had cleared screening test. The committee found that only 340 candidates were eligible for being called to face interview. 302 candidates out of those 340 actually appeared to face interview.
3. The determination of eligibility by the Committee constituted for the purpose came to be questioned before this Court in Writ Petition No.13091 of 2019 (Shrawan Kumar And 5 Others Vs. Uttar Pradesh Public Service Commission). This Court while dismissing the writ petitions vide judgment dated 21.8.2019 clarified that eligibility of the candidate would have to be restricted to the recruitment rules and the advertisement. The Commission also undertook to scrupulously comply with the provisions of the applicable rules and the advertisement while determining eligibility of candidates. Para 13 and 14 of the judgment in Shrawan Kumar (supra) is relevant and is reproduced hereinafter:-
"13. The thrust of the submission on behalf of the petitioners is that the process of scrutinising the application was undertaken on the basis of the three member committee report and that persons who do not qualify in terms of second essential qualification or are otherwise not eligible in view of the stand taken by the Commission have infact been allowed to participate. This contention raised on behalf of the petitioners need not cause any difficulty inasmuch as having taken a categorical stand before this Court that the Commission shall restrict consideration to candidature of those persons who have either obtained 'O' level diploma in computer awarded by the DOEACC Society or atleast one year diploma in Computer Science from any recognised University/ Institution established by law, the consideration would have to be limited to that category of applicants alone. The Commission is expected to scrutinise this aspect and to ensure that only such candidates are allowed to take part in the interview who possess requisite qualification in accordance with the advertisement and the applicable service Rules of 2012. The apprehension expressed on behalf of the petitioners, therefore, would not justify any interference by this Court in exercise of writ jurisdiction.
14. In view of the discussions made above and in light of the stand taken by the Commission, as also the statement of their senior counsel that Commission shall scrupulously comply with it, this writ petition is consigned to records."
4. The Commission, accordingly, revisited the issue of eligibility in light of the observations made by this Court in the case of Shrawan Kumar (supra). Upon a careful examination the Commission found only 198 candidates to be eligible for appointment. The Commission accordingly subjected only 198 eligible candidates to face interview. Only 142 out of those 198 eligible candidates were found suitable by the Commission for appointment. The suitability for appointment has been judged on the basis of 40% minimum marks secured at the interview for unreserved and OBC candidates, while 35% marks for Scheduled Castes/Scheduled Tribes candidates. Selection has been made of 142 suitable candidates alone. Petitioners are essentially aggrieved by this decision of the Commission. According to petitioners all candidates who have qualified the screening test and are found eligible are liable to be selected, inasmuch as the Commission lacks any power/jurisdiction to fix minimum marks in interview for adjudging suitability of candidate concerned. According to petitioners the applicable service rules do not confer any jurisdiction upon the Commission to fix minimum marks at the interview for adjudging suitability of candidate for selection to the post in question.
5. Petitioners' contention in that regard is countered by the State, as also the Commission, by relying upon Article 320 and 335 of the Constitution of India as also the applicable service rules, and the procedure rules that regulates the functioning of the Commission. Submission is that suitability of a candidate for selection to the post is required to be determined by the Commission and power to fix the minimum norms for the purpose is clearly implicit in the applicable scheme for recruitment. Various provisions and Government Orders in that regard have been relied upon, which shall be dealt with, later. It is in this context that the issue arises for consideration before this Court.
6. I have heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Aishwarya Pratap Singh and Sri Seemant Singh for the petitioners; Sri G.K. Singh, learned Senior Counsel assisted by Sri F.A. Ansari for the Commission, and Dr. A.N. Singh, learned Standing Counsel for the State, and have perused the materials brought on record.
7. The short question that arises for consideration, in the facts of the present case, is as to whether the Commission has any jurisdiction in the applicable statutory scheme to fix minimum marks/criteria at the stage of interview for adjudging suitability of the candidate for appointment to the post in question?
8. Before proceeding any further it would be relevant to notice the scheme for recruitment to the post in question. Appointment to the post of Assistant Statistical Officer is an appointment to an office under the State and would have to be in consonance with Article 16 of the Constitution of India, which provides for equality of opportunity in matters of public employment. The recruitment to the post in question is regulated by the provisions of the Uttar Pradesh Government Department Statistical Service Rules, 2012 (hereinafter referred to as ''the Rules of 2012'). The post in question forms part of the cadre of service specified in Rule 6 of the Rules of 2012. Rule 7 provides that appointment to various category of posts in the service shall be made in the manner specified. Rule 7(1) of the Rules of 2012, in that regard, is reproduced hereinafter:-
"7."Recruitment to the various categories of posts in the service shall be made from the following sources:
(1) Assistant Statistical Officer/Assistant Research Officer (Statistics) - By direct recruitment through the Commission."
9. Rule 8 of the Rules of 2012 provides for reservation to the specified category of candidates and is reproduced hereinafter:-
"8. Reservation for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories shall be in accordance with the Act, and the Uttar Pradesh Public Services (Reservation For Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993, as amended from time to time, and the orders of the Government in force at the time of the recruitment."
10. Qualification of the candidate for direct recruitment is specified in Rule 9 of the Rules of 2012. Age of candidate is specified in Rule 10, while academic qualification for direct recruitment is specified in Rule 11 thereof, which is reproduced hereinafter:-
"11. A candidate for direct recruitment to the various posts in the service must possess the following qualifications:-
(i) Post-graduate degree in Assistant Research Office Mathematics or Mathematical Statistics or Commerce or Economics or Statistics from a University established by law in India or a qualification recognised by the Government as equivalent thereto.
(ii) 'O' level Diploma in Computer awarded by DOEACC Society or at least one year Diploma in Computer Science from any recognised University/ Institution.
(iii) Knowledge of Hindi in Devnagri Script.
2. (i) Post-graduate degree in Mathematics or Mathematical Statistics Or Commerce or Economics or Statistics with at least fifty five percent marks from a University established by law in India or a qualification recognized by the Government as equivalent thereto. Or Two years Post-graduate diploma in Statistics from an Institute recognized by the Government.
(ii) Knowledge of Hindi in Devnagri Script."
11. Procedure for recruitment is contained in Part-V of the Rules of 2012. Rules 16 provides for determination of vacancies while Rule 17 regulates the procedure for direct recruitment. Rule 16 and 17 of the Rules of 2012 are also relevant and are reproduced hereinafter:-
"16. The appointing authority shall determine the number of vacancies to be filled during the course of the year of recruitment as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and other categories under rule 8. The vacancies to be filled through the Commission shall be intimated to them.
17.(1) Application for being considered for selection shall be called by the Commission in the form published in the advertisement issued by the Commission.
(2) The Commission shall, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories in accordance with rule 8, call for interview such number of candidates, who fulfil the requisite qualifications, as they consider proper.
(3) The Commission shall prepare a list of candidates in order of their proficiency as disclosed by the marks obtained by each candidate in the interview. If two or more candidates obtain equal marks, the names of the candidates shall be arranged in accordance with the general policy of the Commission. The Commission shall forward the list to the appointing authority."
12. By virtue of Rule 17(1) of the Rules of 2012, the recruitment to the post in question has to be made by direct recruitment through the Commission. The Commission is established under Article 315 of the Constitution of India. Its functions are specified in Article 320 of the Constitution of India. Clause (1) of Article 320, as also Sub-clause (b) of Clause (3) of Article 320 of the Constitution of India, are relevant for the present purposes, and are therefore reproduced hereinafter:-
"320.(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.
320.(3) The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted--
(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;"
13. The State Legislature has enacted the Uttar Pradesh Public Service Commission (Regulation of Procedure) Act, 1985 (hereinafter referred to as ''the Act of 1985') to regulate the procedure of the Commission in discharge of its functions. In exercise of powers under Section 11(1) of the Act of 1985, statutory rules have been framed, known as The Uttar Pradesh Public Service Commission (Procedure & Conduct of Business) Rules, 2011 (hereinafter referred to as ''the Rules of 2011'). Rule 29 thereof regulates conduct of examination in cases where direct selection is through interview only. If the proportion of candidates applying to the number of posts is high, the Commission may, after examining relevant aspects, decide to hold preliminary examination/screening test of the candidates. Rule 29(iii) of the Rules of 2011 is extracted hereinafter:-
"29.(iii) In cases of direct selection through interview only, if the proportion of candidates to the number of posts is high, the Commission may, after having considered feasibility ,expediency and other aspects to hold examination, decide to hold preliminary examination/ screening test of the candidates."
14. Rule 33 of the Rules of 2011 regulates conduct of preliminary examination in the manner prescribed by the Uttar Pradesh Direct Recruitment through Public Service Commission Preliminary Examination Rule, 1986, as amended from time to time. Rule 33 of the Rules of 2011 throws light on the purpose of holding preliminary examination and is reproduced hereinafter:-
"33.(i) Notwithstanding anything to the contrary contained in relevant service rules or Government Orders regarding recruitment, the Commission may hold preliminary examination/screening test for finding out suitable candidates for admission to main examination or interview, as the case may be;
(ii) Preliminary examination shall mean screening test to be conducted by the Commission with the purpose of finding out suitable candidates in required proportion as fixed by the Commission in each category, reserved and unreserved, for admission to the main examination or interview, as the case may be;
(iii) Preliminary examination shall be conducted in the manner prescribed by the Uttar Pradesh Direct Recruitment through Public Service Commission Preliminary Examination Rule, 1986 as amended from time to time. The marks obtained by the candidates in the preliminary examination/screening test shall not be counted for determining final order of merit.
(iv) The Commission shall fix the place, dates and time of examination which includes preliminary examination/screening test and main examination, as the case may be.
(v) The centres of examination shall be fixed with prior approval of the Chairman/Examination Committee.
(vi) All arrangements for such examinations shall be made by the Controller of Examination in consultation with the Secretary and in accordance with such directions as may be issued by the Commission in that behalf."
15. Rule 51 of the Rules of 2011 contemplates selection by direct recruitment and is also reproduced hereinafter:-
"51. The advertisement for selection to various posts by direct recruitment shall be issued and application form from eligible candidates be invited by the Commission in accordance with the requisition received in that behalf as per provisions of service rules or adhoc principles agreed by the Commission where there are no service rules."
16. Rule 73 of the Rules of 2011 deals with residuary matters while Rule 74 thereof provides for procedure to resolve doubts that may arise in interpretation of rules. Rule 73 and 74 of the Rules of 2011 reads as under:-
"73. The Commission may deal in such manner as they deem fit with any matter not specifically provided for in these rules.
74. If any doubt arises as to the interpretation of these rule, the interpretation made by the Commission shall be final."
17. The Uttar Pradesh Direct Recruitment through Public Service Commission Preliminary Examination Rules, 1986, referred to in Rule 33 of the Rules of 2011, defines preliminary examination in Section 2(vi), which is reproduced hereinafter:-
"2.(vi)"Preliminary Examination" means screening test to be conducted by the Commission with the purpose of finding out suitable candidates for admission to the main examination or interview;"
Section 2(vii) of the Rules of 1986 defines direct recruitment while Section 2(viii) defines suitable candidates and the same are reproduced hereinafter:-
"2.(vii) "Direct Recruitment" means recruitment directly made through the Commission either by competitive examination or by selection other than by Competitive Examination as may be prescribed in Service Rules and Government orders;
2.(viii) "Suitable candidates" means candidate securing minimum number of marks as may be fixed by Commission in its discretion at Preliminary Examination thereby enabling him to appear in the main examination or interview as the case may be;"
18. It is not in issue that no written test has been held and after the candidates have been screened in the preliminary test, their suitability for appointment has been adjudged in the Interview. The Commission in order to justify the allocation of minimum marks for adjudging suitability of a candidate for appointment to the post in question has referred to a communication issued by the State Government on 30th September, 1966, which is extracted hereinafter:-
"I am directed to say that in this Department circular G.O. no.O-3140/II-B-26-1949, dated October 29, 1949, on the subject noted above, it was indicated that a lower standard of test should be applied in the selection of candidates of Scheduled Castes and even if it was found that the candidates belonging to the Scheduled Castes with the minimum qualifications were below others in merit, they should, to the extent of their quota, be selected for appointment. These orders were reiterated in subsequent G.O. no.13SC/II-B-311-64, dated March 10, 1964. Further, in G.O. no.556-SC/II-B-467-1964, dated February 15, 1966, it was provided that in all recruitments, whether by competitive examination or selection, a minimum standard of fitness consistent with the maintenance of efficiency of administration, should be fixed for the candidates of the Scheduled Castes, and if such a candidate comes up to that standard, he should be selected for appointment irrespective of the marks obtained by the last general candidate so selected.
2. The question whether the aforesaid orders infringed the constitutional guarantee relating to equality of opportunity in matters of public employment came up for consideration recently, and Government have been advised that the minimum standard of fitness consistent with the maintenance of efficiency of administration should be the same for all candidates and that it cannot be different for Scheduled Castes as compared to other candidates. Therefore, in suppression of the orders contained in the three G.Os. cited above, it has been decided that with a view to enabling the Scheduled Castes to secure their due quota in services, a minimum standard of fitness consistent with the maintenance of efficiency in administration should be laid down for all candidates and subject to the said minimum standard of fitness, the selection of candidates belonging to Scheduled Castes should be made separately to the extent of the seats reserved for them, even though their absolute performance may be inferior to that of the last general candidate selected against the non-reserved seats.
3. These orders may please be brought to the notice of all concerned for their information and guidance."
19. The requirement to fix minimum standard of fitness consistent with the maintenance of efficiency of administration appears to have arisen on account of a specific provision contained in Article 335 of the Constitution of India, which is reproduced hereinafter:-
"335. 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 promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State."
20. In light of the aforesaid communication of the State, a decision has been taken by the Commission on 24th December, 1966 to fix minimum standard of fitness consistent with maintenance of efficiency of administration for a candidate for appointment, which is reproduced hereinafter:-
"Extracts of the order from file no.281/47-48 of communal representation in Service- Govt. orders regarding.
DISCUSSED on Dec. 23.
The Commission agreed to the observations of the Government that a minimum standard of efficiency must be insisted upon from the Scheduled Caste candidates, which minimum standard should not be different for the general candidates. The Commission, therefore, decided to adopt this principle for future recruitment. The Commission also decided that the minimum limit may be different for different posts and that generally speaking it should not be less than 40% of marks that may be secured in the aggregate of marks secured at the interview and/or in written papers."
Undisputedly, the aforesaid decision of the Commission is being consistently followed in all subsequent selections for the unreserved and OBC candidates.
21. By a subsequent decision the Commission has modified the minimum standard of efficiency for the Scheduled Castes candidates by lowering it to 30%. The decision in that regard has again been revised and the minimum standard for efficiency in respect of Scheduled Castes and Scheduled Tribes candidates has been revised to 35% vide decision of the Secretary dated 25th July, 2019. It is on this yardstick that 142 candidates have been adjudged suitable for appointment by the Commission.
22. Sri Ashok Khare, learned Senior Counsel for the petitioners submits that Recruitment Rules of 2012, as also the Procedure & Conduct of Business Rules of 2011, do not vest jurisdiction in the Commission to fix minimum marks at the stage of interview for a candidate to be selected for appointment. Sri Khare has placed reliance upon a judgment of the Apex Court in the case of Durgacharan Misra Vs. State of Orissa and others, (1987) 4 SCC 646, to submit that in the absence of express power conferred in the rules the Commission cannot fix any minimum marks to be secured at interview. Reliance is also placed upon a judgment of the Apex Court in Dr. Krushna Chandra Sahu and others Vs. State of Orissa and others, AIR 1996 SC 352. With reference to para 35 to 38, it is firmly contended that the Commission at its own level was denuded of any jurisdiction to lay down standards for adjudging suitability when the rules framed under proviso to Article 309 of the Constitution of India do not contemplate so.
23. Sri Seemant Singh, also appearing for the petitioners, while adopting the argument of Sri Khare further submits that once suitability of a candidate has been examined in the preliminary examination it was not open thereafter for the Commission to lay down criteria of minimum marks at the stage of interview. It is urged that suitability of a candidate for appointment had already been examined by the Commission in the preliminary examination, and that in the absence of any specific power the Commission could only determine the inter-se merit of candidates for recruitment to the post in question, by virtue of Rule 17(3) of the Rules of 2012. Sri Singh, therefore, submits that all candidates, who are adjudged suitable at the screening test are liable to be included in the select list, after it was found that they do possess requisite eligibility. Submission is that elimination of candidates, at the stage of interview, is wholly arbitrary and unsustainable.
24. Submission advanced on behalf of petitioners is countered by Sri G.K. Singh, learned Senior Counsel assisted by Sri F.A. Ansari for the Commission. Reliance is placed by Sri Singh upon Division Bench judgments of this Court in the case of Dr. Ram Sukh Yadav Vs. State of U.P. and others, (1997) 1 UPLBEC 416; Ram Shanker Roy and others Vs. State of U.P. and others, (2000) 3 UPLBEC 2289, and U.P. Public Service Commission Vs. Sangeeta & 81 Others, 2019 (4) ADJ 650. It is stated that fixing of qualifying marks as 40% for General and OBC candidates has been specifically affirmed in the abovenoted three Division Bench judgments. Reliance is also placed upon a judgment of this Court in the case of Ashok Kumar Nayak Vs. State of U.P. and Another, 2004(1) AWC 129. Learned Senior Counsel has also referred to the judgment of Apex Court in K. Manjusree Vs. State of U.P. and Another, (2008) 3 SCC 512.
25. Learned Senior Counsel for the Commission submits that the Division Bench of this Court in U.P. Public Service Commission Vs. Sangeeta & 81 Others (supra) has specifically endorsed the fixing of cut off marks by the Commission to determine fitness of a candidate for selection, which stands affirmed by the Apex Court with dismissal of Special Leave Petition (Civil) Diary No.17510 of 2019 (Sangeeta and others Vs. U.P. Public Service Commission).
26. In reply to the aforesaid argument, Sri Ashok Khare, learned Senior Counsel submits that the service rules framed under proviso to Article 309 of the Constitution of India were distinct before the Division Bench in U.P. Public Service Commission Vs. Sangeeta & 81 Others (supra). Emphasis is laid upon Rule 15(4) of the Uttar Pradesh Subordinate Nursing (Non-Gazetted) Service (Fourth Amendment) Rules, 2016 (hereinafter referred to as ''the Rules of 2016') to submit that only those candidates could be recommended for appointment, who were found fit for appointment, while in the applicable rules in the present case no such power is vested with the Commission.
27. Direct recruitment to the post of Assistant Statistical Officer is to be made through the Commission. The Commission is a body established under Article 315 of the Constitution of India. Its functions are specified in Article 320. Sub-Article 1 of Article 320 casts a duty upon the Union and the State Public Service Commission to conduct examinations for appointment to the services of the Union and the services of State, respectively. Sub-Article (b) of Article 320(3) provides that the Commission shall be consulted on the principles to be followed in making appointment to civil post and on the suitability of candidate for such appointment etc. The Commission, therefore, is required to be consulted on the suitability of candidate for appointment to the post in question. The selection by direct recruitment in the present case is by the Commission itself. The judging of a candidate's suitability for appointment to a post has to be on some rational and objective criteria. The Service Rules of 2012 only provides that direct appointment is to be made through the Commission. What would, however, be the yardstick to judge suitability of a candidate for appointment is not specified in the applicable service rules. Sub-rule 3 of Rule 17 of the Rules of 2012 mandates the Commission to prepare a list of candidates in order of their proficiency, as disclosed by the marks obtained by each candidate in interview. It also provides that where two or more candidates obtain equal marks the name of candidates shall be arranged in accordance with the general policy of the Commission. The criteria/yardstick to adjudge suitability of a candidate for selection is clearly missing in the applicable service rules.
28. The Commission, as a constitutional body is expected to follow a uniform rational criteria to determine fitness of a candidate for selection to a public office. Prior to interview, no written test is contemplated in the Service Rules of 2012. Only a screening test is contemplated for screening out candidates for interview since large number of candidates have applied otherwise and only thrice the number could be called for interview. The object of screening test is merely to screen out large number of applicants and the suitability at that stage is examined only for admitting the candidates for the main written examination or the interview, as the case may be. The Act of 1986, as also the Conduct of Procedure Rules of 2011 makes it explicit that marks obtained in the screening test would not be added for determining the merit of candidate concerned. This clearly conveys that suitability for appointment to the post in question is not determined at the stage of preliminary/screening examination.
29. In case petitioners' contention is accepted that all eligible persons are liable to be selected for appointment who have cleared the screening test and have appeared in interview, since purpose of interview is only to determine the inter-se merit of candidates, then the primary responsibility cast upon the Commission to examine suitability of a candidate for appointment to the public office would not be discharged.
30. The suitability of a candidate for appointment has to be examined in respect of all category of candidates including those belonging to Scheduled Castes/Scheduled Tribes. Article 335 of the Constitution of India would come into play, as per which claim for appointment to a public office of a Scheduled Caste/Scheduled Tribe candidate is required to be examined consistently with the maintenance of efficiency of administration. The constitutional mandate contained in Article 335 can be accomplished only when the Commission fixes a uniform criteria consistent with the maintenance of efficiency of administration and subjects the candidate to it for ascertaining their suitability. It transpires that fixing of minimum marks for qualifying written test/interview for the purpose of determining suitability of a candidate for appointment is to ensure maintenance of efficiency of administration and has been consistently followed by the Commission for the last more than five decades.
31. Sri G.K. Singh has also placed reliance upon Section 3 of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (hereinafter referred to as ''the Act of 1994'), which refers to selection of a suitable reserve category candidate or else the vacancy would remain unfilled and carried forward to the next recruitment. It is urged that suitability of candidate consistent with maintenance of efficiency of administration in the making of appointment to service and post in connection with the affairs of the State would, therefore, be the responsibility of the Commission, and that in the absence of any objective criteria fixed for adjudging suitability consistent with the maintenance of efficiency of administration, the recruitment itself would become inconsistent with the constitutional scheme.
32. The argument advanced by Sri G.K. Singh appears to have force, inasmuch as the suitability of a candidate for selection has to be on a rational and objective criteria consistent with the maintenance of efficiency of administration or else the selection itself would be open to challenge on the ground of violation of Article 14 and 16 of the Constitution of India. It is in this context that correspondence appears to have taken place way back in 1966 between the State of Uttar Pradesh and the Commission. The State Government vide its Government Order dated 30th September, 1966 has clarified that a minimum standard of fitness consistent with maintenance of efficiency of administration has to be maintained for all candidates including reserved category candidates. A direction, consequently, has been issued to the Commission to fix minimum standard of fitness consistent with the maintenance of efficiency of administration for all candidates and accordingly determine suitability of candidates for selection. The adherence to the criteria of minimum standard of fitness consistent with the maintenance of efficiency of administration is also in respect of Scheduled Caste/Scheduled Tribe candidates to the extent of seats reserved for them, even though they may be inferior to that of the last general candidate selected against the non-reserved seats. It is in this context and for fulfilling the constitutional mandate that the Commission has fixed 40% minimum marks to be secured at interview and/or in the written papers. The decision of the Commission is otherwise not an independent decision but is based upon the direction of the State Government. The minimum marks fixed for adjudging suitability, otherwise, is not shown to be arbitrary and is clearly consistent with the constitutional mandate imposed upon the Commission to select suitable candidate for appointment.
33. It is already noticed that the Service Rules of 2012 otherwise do not specify any objective criteria to determine suitability of a candidate for appointment. It is equally settled that in the absence of any contrary provision in the statutory rules it is always open for the State to regulate the field by issuing administrative instructions. The Commission's power to fix minimum marks for adjudging suitability of a candidate at the stage of interview could otherwise be sustained with reference to Rule 73 of the Rules of 2011 as the matter is not specifically provided for in the Rules of 2011 or the Service Rules of 2012.
34. In Durgacharan Misra (supra), the appointment to subordinate judicial services was governed by Orissa Judicial Service Rules, 1964. The selection was to be held on the basis of written test which carried 200 marks. In the written test 30% of the total marks in all papers was specified as minimum qualifying marks in the written test and only such candidates, who passed the written test were to be called for viva voce. No minimum marks were specified for the interview. It was in that context that the Apex Court held that securing of minimum marks for interview cannot be introduced at the level of the Commission when rules do not contemplate so. In Durgacharan Misra (supra) a rational objective criteria was already provided for determining suitability of candidate i.e. obtaining of minimum 30% marks at the written test. The Apex Court, therefore, disapproved the laying of additional criteria at the stage of interview when such a provision was otherwise not contemplated in the applicable rules. The Apex Court judgment in Durgacharan Misra (supra) will clearly be distinguishable in the facts of the present case inasmuch as a specific objective criteria of securing 30% minimum marks at the stage of written test had been fixed under the applicable rules while the Service Rules of 2012, applicable in the present case, provides for no such objective criteria.
35. In K. Manjusree (supra) the Apex Court while examining the judgment in Durgacharan Misra (supra) clearly observed that where rules do not prescribe any procedure, the selection committee may prescribe minimum marks for selection in the written examination/interview. Para 29 of the Apex Court judgment in K. Manjusree (supra) is reproduced hereinafter:-
"29. The resolution dated 30.11.2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the minimum marks prescribed for written examination, to interviews, in the selection process is impermissible. We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee want to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the selection committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, 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."
(emphasis supplied by me)
36. The judgment of the Apex Court in Dr. Krushna Chandra Sahu (supra) also dealt with an entirely distinct exigency. In that case the candidates had already been appointed after following the laid down criteria for selection and for their further selection applicable rules did not lay down any guidelines for adjudging suitability of candidate but the selection committee, at its own level, proceeded to lay down criteria for the purpose. It was in that context that the Apex Court observed as under in para 40 of the judgment:-
"40. A candidate in order to be suitable for appointment on a teaching post must have at least three qualities; he should have thorough knowledge of the subject concerned; he should be organised in his thoughts and he should possess the art of presentation of his thoughts to the students. These qualities cannot possibly be indicated or reflected in the confidential character rolls relating to another service, namely, the service in the Health Department as Homoeopathic Medical Officers where the character rolls would only reflect their integrity, their punctuality, their industry and their evaluation by the Reporting or the Accepting officer recorded in the annual entries. True it is that the candidates being already serving officers, their character rolls have to be looked into before inducting them in the new service but this can be done only for the limited purpose of assessing their integrity etc. These character rolls, however, cannot form the SOLE basis for determination of their suitability for the posts of. junior teachers in the Medical Colleges. Then, what formula or method should be adopted to assess these qualities is the question which next arises. this Court in Liladhar v. State of Rajasthan,: (1981)IILLJ297SC , pointed out:-
"The object of any process of selection for entry into a public service is to secure the best and the most suitable person for the job, avoiding patronage and favouritism. Selection based on merit, tested impartiality and objectively, is the essential foundation of any useful and efficient public service. So, open competitive examination has come to be accepted almost universally as the gateway to public services."
37. The selection to public service as also adjudging of suitability for direct recruitment was not the subject matter of consideration before the Apex Court in the case of Dr. Krushna Chandra Sahu (supra). Petitioners, therefore, cannot draw any benefit from the observation made in the aforesaid judgment.
38. The judgment of the Apex Court in the case of Durgacharan Misra (supra) has also been distinguished, on facts, by the Division Bench of this Court in the case of U.P. Public Service Commission Vs. Sangeeta & 81 Others (supra). The aspect relating to fitness of a candidate has been examined extensively by the Division Bench. I am in respectful agreement with the view taken by the Division Bench in U.P. Public Service Commission Vs. Sangeeta & 81 Others (supra), as is contained in para 42 to 51 of the judgment, which are extracted hereinafter:-
"42. On the contrary in K.H. Siraj Vs. High Court of Kerala and Others, (2006) 6 SCC 395, the word 'suitable' used in Rule 7 of Kerala Judicial Services Rules, 1991 (hereinafter referred to as the 'Rules') invited an interpretation. Rule 7 of the Rules required the High Court of Kerala to hold examination (written and oral), and to prepare a list of candidates considered 'suitable' for appointment. For ready reference Rule 7 of the Kerala Judicial Services Rules, 1991 (as extracted in the report) is quoted below:
"7. Preparation of lists of approved candidates and reservation of appointments.--(1) The High Court of Kerala shall, from time to time, hold examinations, written and oral, after notifying the probable number of vacancies likely to be filled up and prepare a list of candidates considered suitable for appointment to Category 2. The list shall be prepared after following such procedure as the High Court deems fit and by following the rules relating to reservation of appointments contained in Rules 14 to 17 of Part II of the Kerala State and Subordinate Services Rules, 1958.
(2) The list consisting of not more than double the number of probable vacancies notified shall be forwarded for the approval of the Governor. The list approved by the Governor shall come into force from the date of the approval and shall remain in force for a period of two years or until a fresh approved list is prepared, whichever is earlier."
43. Though the Rule was silent, the High Court of Kerala evolved a procedure prescribing pass marks (in the examination conducted by it), as a criteria to adjudge the 'suitability' for grant of appointment. The same had been challenged as violative of the statute. The Supreme Court in paragraph nos. 49 and 50 held as below:
"49. .......The very use of the word "suitable" gives the nature and extent of the power conferred upon the High Court and the duty that it has to perform in the matter of selection of candidates. The High Court alone knows what are the requirements of the subordinate judiciary, what qualities the judicial officer should possess both on the judicial side and on the administrative side since the performance of duties as a Munsif or in the higher categories of Subordinate Judge, Chief Judicial Magistrate or District Judge to which the candidates may get promoted require administrative abilities as well. Since the High Court is the best judge of what should be the proper mode of selection, Rule 7 has left it to the High Court to follow such procedure as it deems fit. The High Court has to exercise its powers in the light of the constitutional scheme so that the best available talent, suitable for manning the judiciary may get selected.
50. ........The merit of a candidate and his suitability are always assessed with reference to his performance at the examination and it is a well-accepted norm to adjudge the merit and suitability of any candidate for any service, whether it be the Public Service Commission (IAS, IFS, etc.) or any other. Therefore, the powers conferred by Rule 7 fully justified the prescription of the minimum eligibility condition in Rule 10 of the notification dated 26-3-2001. The very concept of examination envisaged by Rule 7 is a concept justifying prescription of a minimum as benchmark for passing the same. In addition, further requirements are necessary for assessment of suitability of the candidate and that is why power is vested in a high-powered body like the High Court to evolve its own procedure as it is the best judge in the matter. It will not be proper in any other authority to confine the High Court within any limits and it is, therefore, that the evolution of the procedure has been left to the High Court itself. When a high-powered constitutional authority is left with such power and it has evolved the procedure which is germane and best suited to achieve the object, it is not proper to scuttle the same as beyond its powers. Reference in this connection may be made to the decision of this Court in Union of India v. Kali Dass Batish [(2006) 1 SCC 779 : 2006 SCC (L&S) 225] wherein an action of the Chief Justice of India was sought to be questioned before the High Court and it was held to be improper."
(emphasis supplied)
44. A question therefore arises as to the legality of the basis adopted by the appellant-Commission while making that recommendation. Even in that regard, Rule 15(4) offered a clear guiding principle to the appellant-Commission to make its recommendations based on merit. As a fact, the appellant-Commission had considered only the absolute merit of individual candidates in aggregate marks obtained by them out of a maximum of 100 marks (being 85 marks in the written examination and 15 marks for work experience). Therefore, in view of the stipulation contained in Rule 15(4) of the Rules requiring the appellant-Commission to recommend those considered fit for appointment, it was wholly competent for the appellant-Commission to set a bench mark based on the same stipulation of merit determined on aggregate marks scored in the selection process.
45. The appellant-Commission also did not examine any other or further material. The test of merit as contained in Rule 15(4) of the Rules itself, was applied. It was was wholly objective and in no part subjective. The appellant-Commission adopted an objective, reasonable, fair and transparent bench-mark. It neither chose to give weightage to marks obtained in the written examination nor it, preferred the marks obtained on the basis of work experience, to judge fitness or preference for grant of appointment. The appellant-Commission chose a wholly neutral, reasonable, fair and objective criteria of 40 marks (for general category candidates) and 30 marks (for reserved category candidates) of aggregate of marks awarded in the written examination and for work experience.
46. Therefore, in our opinion, there is no warrant to infer that an additional condition had been introduced by the appellant-Commission in adopting a merit based bench mark to make it's recommendation for appointment. There is no illegality in the same. There is no conflict in the action of the appellant-Commission and the Rules in that regard.
47. What therefore remains for consideration is the reasonableness or otherwise of the decisions of the Commission dated 24.12.1966, 05.02.2011 and 01.09.2018 i.e. whether they provide a reasonable and fair bench mark or guiding principle for the purpose of preparation of the list of candidates considered 'fit' for appointment. First, it is clear, those decisions/resolution/notification did not deprive or vary the absolute or relative merit position of any of the petitioner-respondents or any eligible candidate from his merit position, to which he may claim entitled. Second, since the list of candidates recommended for appointment was required to be prepared on the basis of merit based on aggregate marks alone, the measure adopted by the appellant Commission to consider only such candidates as fit for appointment who may have attained a minimum of 40% and 30% marks as a general category or reserved category candidate as the case may be, is wholly consistent with that stipulation contained in Rule 15(4) of the Rules.
48. As noted above, by creating the bench mark or cut-off at 40 percent of the aggregate marks, to determine the fitness for selection, the appellant-Commission also acted consistent with the well accepted norm in academics. It did not seek to put the bar any higher than the commonly accepted pass percentage. To accept anything lower than the pass percentage by way of a test of fitness may have called for a deeper scrutiny as to its reasonabilty. A person who may not have 'passed' an examination may not be generally considered fit or suitable for further progress either in academics (at any level) or for appointment.
49. Any examination, in the first place seeks to test the retention, understanding and application of studies or knowledge that may have been imparted or acquired by those taking that examination. The proficiency that the appellate-Commission was obliged to test to make its recommendation as to fitness for appointment, had to be amongst those meeting some minimum standards. If that minimum requirement were to be ignored, the criteria of fitness would remain largely untested or meaningless. Any candidate who may who may have been asked to secure a minimum 40 percent marks in such examination to establish his fitness for appointment cannot be heard to complain of any unreasonableness in selection of that bench mark or cut-off mark.
50. To put it in other words, a candidate who may have failed in an examination may never claim to be considered for further promotion in any academic course. So also, a candidate seeking selection to a post who may have failed to obtain a certain minimum pass marks may never be heard to complain that he had not been found fit for selection or recommendation for appointment. In short, the bench mark or the cut-off mark of 40 percent and 30 percent as chosen by the appellant-Commission, and which was duly notified and applied across the board to all candidates, cannot be doubted or questioned as arbitrary or unreasonable.
51. Seen in that light, irrespective of the fact that the decision of the appellant Commission dated 24.12.1966 or 05.02.2011 may never have been adapted by it after the enforcement of the Rules, the same did not fell foul with the Rules inasmuch as they never sought to lay a new or different eligibility condition contrary to the Rules. In fact, the notification dated 01.09.2018 is plainly consistent and it complements the Rules."
39. The attempt on part of the petitioners to distinguish the Division Bench judgment in the case of U.P. Public Service Commission Vs. Sangeeta & 81 Others (supra), with reference to the language of Rule 15 of the Rules of 2016 is also required to be dealt with, at this stage. Rule 15 of the Rules of 2016 provides as under:-
"Procedure for direct recruitment - 15. (1) Applications for permission to appear in the Competitive Examination shall be invited by the Commission in the form published in the advertisement issued by the Commission.
(2) No Candidate shall be admitted to the Examination unless he holds a certificate of admission issued by the Commission.
(3) Selection shall carry one hundred marks. The merit list of the candidates shall be prepared in the following manner:-
(a) Written Examination shall carry eighty five marks.
(b) Marks to a person who is working as Staff Nurse on contract basis in the Medical and Health Services Department, Uttar Pradesh shall be awarded in the following manner subject to the maximum of fifteen marks:-
(i) For the first completed year of service on contract basis ---------- Three marks.
(ii) For the next and every completed year of service on contract basis ---- Three marks for each year.
(c) The marks obtained by each candidate under clause (a) shall, where applicable, be added to the marks obtained under clause (b).
(4) The Commission shall, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories in accordance with rule 6, prepare a list of candidates in order of their proficiency as disclosed by the marks obtained by them under clause (c) of sub-rule (3) and recommend such number of candidates as they consider fit for appointment. If two or more candidates obtain equal marks, the name of the candidate senior in age shall be placed higher in the list. The Commission shall forward the list to the appointing authority."
40. It is submitted on behalf of petitioners that Rule 15(4) of the Rules of 2016 permitted the Commission to consider fitness of a candidate for appointment, whereas no such contemplation exists in the Rules of 2012. It is sought to be urged that in the absence of any such stipulation in the applicable rule, the Commission would have no jurisdiction to fix any minimum mark to be secured by a candidate for appointment to the post. The argument raised in that regard is absolutely fallacious. The Commission has a positive obligation in the constitutional scheme to ensure that only a suitable candidate is appointed to the service of State. The suitability has to be consistent with the fitness of a candidate required for maintenance of efficiency of administration to the public office. The adjudging of suitability consistent with maintenance of efficiency of administration has to be on a rational and objective criteria. Unless such a criteria is determined and applied, the selection itself would not withstand the test of judicial scrutiny. In the absence of contrary stipulation in the rules, laying of criteria by the Commission of securing 40% minimum marks at written test and interview would, therefore, clearly be justified. The decision in that regard has otherwise been consistently followed for the last more than 50 years. The decision of the Commission is also in response to a specific direction of the State Government. The executive instructions of the State as also the fixing of minimum marks by the Commission, therefore, would clearly be just and legal.
41. Suitability and eligibility are otherwise not interchangeable words. The mere fact that a candidate is eligible would not lead to an inference that such candidate is also suitable for appointment even if he has passed the screening test. It has already been observed that in the Rules of 2012 no criteria for adjudging suitability is provided and that the preliminary/screening examination is not for the purposes of adjudging suitability of a candidate for appointment. The petitioners, therefore, would not be justified in contending that merely on account of their eligibility and passing of screening test, they are liable to be adjudged suitable for appointment. The Commission, therefore, is justified in fixing 40% minimum marks at the stage of interview for adjudging suitability in order to ensure that fitness of a candidate is consistent with maintenance of efficiency of administration. In light of the aforesaid discussions, the arguments advanced on behalf of petitioners fail.
42. All the writ petitions, accordingly, are dismissed. Parties to bear their own cost.
Order Date :- 18.11.2019 Anil (Ashwani Kumar Mishra, J.)