Allahabad High Court
Suresh Kumar Singh vs State Of U.P. And Ors. on 9 October, 2003
Equivalent citations: 2004(1)AWC64, (2004)1UPLBEC272
Author: R.K. Agrawal
Bench: R.K. Agrawal
JUDGMENT R.K. Agrawal, J.
1. By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, Suresh Kumar Singh, seeks a writ, order or direction in the nature of certiorari quashing the order dated 16.12.1994, passed by the Controller of Exams, U. P. Public Service Commission, Allahabad, respondent No. 3, filed as Annexure-2 to the writ petition as also the appointment of Sri Biodhan, respondent No. 4. He further seeks a writ, order or direction in the nature of certiorari quashing the decision taken by the respondent No. 3 to give placement to Sri Biodhan, respondent No. 4 above the petitioner in the select list and to recommend the name of the petitioner for appointment on the post of Naib Tahsildar in the select list of 1979 batch by creating a supernumerary post. Further a writ, order or direction in the nature of mandamus is sought directing the respondent No. 2 (Secretary, Revenue Services, Lucknow) to appoint the petitioner after he receives the recommendation from respondent No. 3 on the post of Naib Tahsildar retrospectively and fix his pay notionally from the date his Junior Sri Biodhan, respondent No. 4 was appointed as Naib Tahsildar.
2. Briefly stated the facts giving rise to the present writ petition are as follows :
"According to the petitioner, he had appeared in the written examination as well as interview conducted by the U. P. Public Service Commission, Allahabad, in the Combined Lower Subordinate Services Competitive Examination. 1979. In the Notification No. A-10-E-IV/78-79, at serial No. 20, the total number of 185 posts of Naib Tahsildar were to be filled up out of which 28 were reserved for being filled up from amongst the candidates belonging to the backward class. The petitioner was allotted Roll No. 40686. He gave his first preference for the post of Naib Tahsildar and the second preference for the post of Entertainment Tax Inspector. He qualified in the written test. He was called for the interview. He scored 253 marks in the written test and 56 marks in the interview, i.e., 309 marks. Sri Biodhan, respondent No. 4 obtained 252 marks in the written test and 57 marks in the interview, i.e., total of 309 marks. However, the petitioner was placed just below the respondent No. 4 by the U. P. Public Service Commission, Allahabad."
3. The petitioner made a representation on 15th June, 1984, before the Chairman, U. P. Public Service Commission, Allahabad, respondent No. 3, pointing out the anomaly and requesting for correcting the select list and placing him above the respondent No. 4. It may be mentioned here that respondent No. 4 had been posted as Naib Tahsildar in the 1979 batch of selected candidates. He sent a reminder on 23rd June, 1994. When his representation was not decided, he approached this Court by filing Civil Misc. Writ Petition No. 24213 of 1994. However, after the representation was decided on 16th December, 1994, the aforesaid writ petition was dismissed.
4. I have heard Sri Ashok Khare, learned senior counsel for the petitioner and the learned counsel appearing for the respondents.
5. Learned counsel for the petitioner submitted that the petitioner had obtained more marks in the written test than that was obtained by the respondent No. 4 and the aggregate of total marks of the petitioner and respondent No. 4 in the written test and viva voce (interview) being same, i.e., 309, the petitioner ought to have been placed above the respondent No. 4. The action of the U, P. Public Service Commission, Allahabad. In placing the petitioner below the respondent No. 4 is wholly illegal and contrary to law. He submitted that the U. P. Subordinate Revenue Executive Service (Naib Tahsildar) Rules, 1944, (hereinafter referred to as 'the Rules of 1944') governed the selection and appointment of Naib Tahsildar. There is no provision empowering the U. P. Public Service Commission, Allahabad to place a person who has obtained higher marks in the interview and where the aggregate is same, above a person who has obtained lesser marks in interview. He submitted that Rule 16 of the Rules of 1944 provides for determining the seniority in the select list as have shown their suitability for appointment in the written test. Thus, the marks obtained in the written test has to play the determining role in placing the candidates in order of merit. His submission is that under Rule 19 of the Rules of 1944 if two or more candidates obtain equal marks in the aggregate, the Commission has to arrange them in order of merit in order of their general suitability for the service. General suitability for the service means by determining the merit according to the marks obtained in the written tests. In support thereof, he relied upon a decision of this Court in Civil Misc. Writ Petition No. 24584 of 1989. Vinay Khare v. State of U. P. and Ors., decided on 5th September, 1992, wherein this Court while interpreting the Rule 19 of U. P. Nyayik Sewa Niyamavali, 1951, had considered this very question and had held that the correct interpretation of Rule 19 is where two or more candidates have the same total of marks, the candidates having highest mark in the written test should be appointed and not candidates having highest in the oral test. He further submitted that a Special Appeal No. 229 of 1992 was filed against the aforesaid judgment wherein the Division Bench of this Court did not interfere. He also submitted that the general trend in the State of Uttar Pradesh is where candidates have obtained the same aggregate of marks in the selection, emphasis has been given to place those candidate who has obtained higher marks in the written examination, above in order of merit to those who have obtained lesser marks in the written test. He referred to Rule 14 (4) of the U. P. Civil Service (Executive Branch) Rules, 1982 and Rule 17 of the Collection Amins Service Rules, 1974. Without prejudice to the above, Sri Ashok Khare further submitted that the petitioner was placed at serial No. 1 in the waiting list and when the State Government called for 44 new names for appointment on the post of Naib Tahsildar, the Commission ought to have sent the name of the petitioner. He relied upon the Division Bench decision of this Court in the case of Civil Misc. Writ Petition No. 25598 of 1994, Neel Kantha Tripathi v. State of U. P. and Ors., decided on 5th May, 1995, wherein this Court has held if the State Government has called for the names subsequently, Government order dated 29th August, 1992 will not apply.
6. Learned counsel for the Commission submitted that under Rule 19 of the Rules of 1944, it has been specifically provided that if two or more candidates obtain equal marks in the aggregate, the Commission shall arrange them in order of merit on the basis of their general suitability for the service. It has not been provided at any place that person who has obtained higher marks in the written test shall be placed above the person who obtained less marks in the written test where the aggregate of total marks obtained by them are the same, as has been provided in the U. P. Civil Service (Executive Branch) Rules, 1982 and the Collection Amins Rules, 1974. According to him, the decision relied upon by the learned counsel for the petitioner in the case of Vinay Khare (supra), has been overruled in the case of Writ Petition No. 1247 (SB) of 1992. Km. Manju Trivedi v. State of U. P.. decided on 19th January, 1994. He also relied upon a Division Bench decision in the case of Avinash Narain Pandey v. State of U. P. and Ors., (1996) 2 UPLBEC 1249. He further submitted that the life of the select list is only one year in terms of the Government order and in the absence of any contrary provision the select list had exhausted and the petitioner is not entitled for his name being sent for appointment.
7. Having heard the learned counsel for the parties, I find that the petitioner and respondent No. 4 have obtained 309 marks in aggregate in the written and interview tests held by the U. P. Public Service Commission. Allahabad. While the petitioner had obtained 253 marks in the written test and 56 marks in the interview, the respondent No. 4 had obtained 252 marks in the written test and 57 marks in the interview. Under the Rules of 1944, the Commission is to prepare the list of candidates for direct recruitment in order of their proficiency as disclosed by the aggregate marks finally awarded to each candidate and where two or more candidates obtained equal marks in the aggregate, the Commission shall arrange them in order of merit on the basis of their suitability for the service. Rules 16 and 19 of the Rules of 1944 are reproduced below :
"16. Admission to the viva voce.--(1) After the marks obtained by the candidates in the written test have been received, a consolidated list of the candidates shall be prepared in order of merit and laid before the Commission. The list shall show neither the roll number nor the names of the candidates, but shall only give serial number in order of merit, the community to which the candidate belong and the marks obtained by them in the written test. The Commission shall summon for interview as many candidates as have shown their suitability for appointment in the written test having regard to necessity for securing the representation of the communities and classes for which reservation has been made and shall award marks up to a maximum of 100 to each such candidate for his suitable appointment in respect of character, personality and physique. The marks so allotted shall be added to the marks obtained in the written examination.
(2) Except for the purpose indicated above, the marks obtained by the candidates in the written test shall not be disclosed to the Members of the Commission who conduct viva voce examination until the examination is over and the marks therefore have been finally awarded.
19. Selection of candidates for direct recruitment. -- The Commission shall prepare a list of the candidates for direct recruitment in order of their proficiency as disclosed by the aggregate marks finally awarded to each candidate. If two or more candidates obtain equal marks in the aggregate the Commission shall arrange them in order of merit on the basis of their general suitability for the service. Subject to the provisions of Rule 21 and to the allocation of posts to communities and classes, the Board shall select the candidates who stand highest in order of merit, provided that 'they are satisfied that the candidates are duly qualified in other respects."
8. Section C of Appendix-C framed under Rule 15 of the Rules of 1944 provides as to how the personality test/viva voce shall be conducted. It includes awarding of marks for general suitability for service also. From a reading of Rules 16 and 19 along with Section C of Appendix-C, it will be seen that while Rule 16 refers for summoning the candidates for interview, who have shown their suitability for appointment in the written test, Rule 19 specifically provides for arrangement of merit list where two or more candidates have obtained equal marks in the aggregate, on the basis of their general suitability for the service and Section C of Appendix-C provides for giving of marks for general suitability for service in the viva voce/personality test. Thus, the marks obtained in the viva voce/personality test/interview has to be considered for placing a person in the merit list where two or more candidates have obtained equal marks in the aggregate. In this view of the matter, the action of U. P. Public Service Commission, Allahabad, in placing the petitioner below the respondent No. 4 cannot be said to suffer from any infirmity in law. Reliance placed by Sri Khare on the decision of Vinay Khare (supra) is misplaced as the said decision has subsequently been overruled by a Division Bench of this Court in the case of Km. Manju Trivedi (supra). In the case of Km. Manju Trivedi (supra) this Court has held as follows :
"Rule 19 provides for general suitability to be the determinative factor while Clause (6) of Appendix-E provides the manner of determining suitability of the candidates. There is no reason not to consider the provision of Clause (6) in interpreting Rule 19. We are, therefore, not in agreement with the view of the learned single Judge. The rule of simpler and shorter interpretation has no application in this case. Whether the written test or interview constitute test of general suitability, is the question to be decided. They cannot be compared for being shorter and simpler. There is no objective test to determine it and in absence of any reason to say that either of them is shorter or simpler, the test appears to be totally inapplicable and artificial."
9. Similar is the position in the present case also. Rule 19 of the U. P. Nyayik Sewa Niyamawali is in part materia with the Rules of 1944. Thus, in accordance with Rule 19 of the Rules of 1944, the Commission was fully justified in taking the marks obtained in the interview test as the basis for determining the merit of the candidates who have obtained equal marks in the aggregate. The decision of this Court in the case of Km. Manju Trivedi (supra) was subsequently followed in the case of Avinash Narain Pandey (supra). So far as the order passed by this Court in Special Appeal No. 229 of 1992 against the decision of the learned single Judge in the case of Vinay Khare is concerned, this Court in the case of Avinash Narain Pandey has held that special appeal was disposed of without deciding the controversy Involved on the basis of the following assumptions ;
"13..........................
(1) Rule, which has prescribed the criteria for selection on the basis of the marks obtained in the interview when two or more candidates have secured equal marks in the aggregate has been amended.
(2) The only person, who is affected by the unamended rule is Vinay Khare, who has already been appointed as Munsif about two years ago ; and (3) The other affected person, namely, Zameer Ahmad and Km. Manju Trivedi have not challenged their non-selection.
All these assumptions were unwarranted being contrary to the reality. This is clear from the following admitted facts :
(1) The Commission in its counter-affidavit in the present case has admitted that there was a proposal to amend the Rule, which is still pending before the State Government and the rule has not been amended so far ;
(2) Apart from Sri Vinay Khare, Sri Zameer Ahmad and Km. Manju Trivedi were also the affected persons by the same decision of the Commission, which was challenged by Vinay Khare and they have also challenged their non-selection before the Lucknow Bench of this Court by means of two Writ Petition Nos. 1247 (SB) of 1992 and 1289 (SB) of 1993 and both these writ petitions were allowed by a Division Bench (L.K.O.) on 19.4.1994 holding that in a case where equal marks are secured by two or more candidates, their names are to be placed in the list in order of merit on the basis of the marks obtained by them in the interview. The decision of the learned single Judge in Vinay Khare's case was also overruled by the Bench.
(3) Although judgment of the Division Bench (L.K.O.) in Km. Manju Trivedi's case was delivered on 19.4.1994, but it was not brought to the notice of the Bench hearing the appeal, filed by the Commission against the order of the learned single Judge in Vinay Khare's case, although the appeal was decided on 14.7.1994. Judgment of the Special Appeal Bench was thus, given in ignorance of the decisions of the Division Bench in Km, Manju Trivedi's case."
10. No benefit can be taken from Rule 14 (4) of the Uttar Pradesh Civil Service (Executive Branch) Rules, 1982 and Rule 17 of the Collection Amins' Service Rules, 1974 as, in the present case, there is no such provision in Rule 19 of the Rules of 1944. The State Government has not amended the Rule 19 of the Rules of 1944 in the light of the aforementioned Rules. Till such time, it is not modified, merit list is to be prepared on the basis of the marks obtained in the interview wherein general suitability for the service is seen.
11. So far as the question as to whether the select list continues to remain valid for a period after one year is concerned, it may be mentioned here that, in the absence of any specific provision, the select list is treated valid for a period of one year. Reliance placed by the learned counsel for the petitioner on the Government order dated 25th March, 1985, is misplaced. In the case of Neel Kanth Tripathi (supra) this Court has held that all Government orders have prospective effect unless otherwise directed. The Government Order No. 28/5/1980 Karmik-1 dated 15th July, 1982, had specifically provided that the period of one year is the life of the select list. The U. P. Public Service Commission, Allahabad, had sent its recommendation on 27th July, 1982 and the life of the select list stood exhausted after one year.
12. In view of the foregoing discussions, I do not find any merit in this petition. It is dismissed. However, the parties shall bear their own costs.