Allahabad High Court
Ashish Kumar Chaurasia vs State Of U.P.& 2 Ors. on 11 October, 2013
Author: Rajes Kumar
Bench: Rajes Kumar, Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment reserved on 25.09.2013 Judgment delivered on 11.10.2013 Case :- WRIT - A No. - 52089 of 2013 Petitioner :- Ashish Kumar Chaurasia Respondent :- State Of U.P.& 2 Ors. Counsel for Petitioner :- Siddharth Khare,Ashok Khare Counsel for Respondent :- C.S.C.,Ayank Mishra Hon'ble Rajes Kumar, J.
Hon'ble Manoj Misra, J.
1. We have heard Sri Ashok Khare, learned senior counsel, assisted by Sri Siddharth Khare for the petitioner, learned Standing Counsel for the respondent No.1 and Sri Ayank Mishra for the respondent Nos. 2 and 3.
2. By the instant petition, the petitioner, who claims himself to be the member of the other backward classes, has challenged the condition No. 4(C) of Advertisement No.03/VSA/2003, dated 02.09.2013, issued by the Electricity Service Commission, U.P. Power Corporation Ltd., Lucknow whereby applications have been invited for filling up a large number of posts of Assistant Engineer (Trainee) in different branches of Engineering including (Civil Engineering). As per the advertisement, a candidate amongst others was required to possess a Bachelors Degree in Electrical Engineering/ Electronics Engineering/ Computer Science Engineering/Information Technology and Civil Engineering from a University or institution established by law in Uttar Pradesh or from any other institution recognized by the State Government or a degree recognized as equivalent thereto by the State Government OR Part A & B examinations conducted by the Institution of Engineers (India). (Same branch as Engineering Branch of post being applied for). Sub-clause (C) of Condition No.4 of the advertisement provided that General and OBC candidates having minimum 60% marks and SC/ ST candidates having minimum 55% marks in aggregate in Engineering Degree are only eligible to apply for the above post. It is this condition which has been challenged in the instant petition.
3. The learned counsel for the petitioner submitted that the aforesaid condition is arbitrary and amounts to changing the eligibility criteria provided by the service regulations. It was submitted that recruitment to the post of Assistant Engineer in the aforesaid service is governed by U.P. State Electricity Board Service of Engineers Regulations, 1970 (hereinafter referred to as the Service Regulations), which have been notified on 08.12.1970 by the then U.P. State Electricity Board, in exercise of power under Sections 79(C) of the Electricity (Supply) Act, 1948. It was submitted that Regulation 10, provides for the qualifications, as under:-
"10. Qualification.- A candidate for direct recruitment as Trainee Engineer must besides having a through knowledge-of Hindi in Devnagri script, hold the following qualifications-
(i) a Degree in electrical/mechanical/tele-communication/instrumentation engineering from a University or Institution established by law in Uttar Pradesh or from any other Institution recognized by the State Government or a degree or diploma recognized as equivalent thereto by the State Government;
or
(ii) Sections 'A' and 'B' of the Associate Membership of the Institution of Engineers (India).
or be an Associate, Member of the Institution of Electrical Engineers (London)."
4. It was submitted that Appendix-B of the Service Regulations, provides for the procedure for direct recruitment, which requires holding of a written test followed by an interview for selection of the candidates. It was submitted that fixing minimum cut off marks over and above the minimum eligibility criteria provided by the Service Regulations, at the threshold of the recruitment process, by the Electricity Service Commission for determining eligibility to apply for the post is totally arbitrary and unjustified, particularly, when a written test is there for entering the second stage of the examination i.e. the interview. It was submitted that it is well settled that in the event of conflict between the statutory regulations/rules and the terms and conditions of the advertisement relating to eligibility, it would always be the statutory regulations/rules that would prevail. It has thus been submitted that the aforesaid condition in the advertisement is liable to be quashed and that a direction be issued to the respondents to issue an advertisement by way of corrigendum inviting applications from all those candidates who hold minimum qualifications as per the Service Regulations.
6. Considering the nature of the controversy, which does not involve any factual dispute as well as the fact that the probable date for the written examinations was shown to be on 26.10.2013/ 27.10.2013, instead of calling for a counter affidavit, we required Sri Ayank Mishra, learned counsel for the Corporation as well as the Commission, to seek instructions in the matter so as to inform the Court about the legal basis of such a condition put by the Electricity Service Commission at the threshold of the recruitment process.
7. Sri Ayank Mishra, did not dispute the minimum eligibility conditions provided by Regulation 10 of the Service Regulations, which we have noticed herein above, but, on 25.09.2013, when the matter was taken up, Sri Ayank Mishra produced before us Electricity Service Commission, U.P. State Electricity Board (Procedure and Conduct of Business) Regulations, 1978 (hereinafter referred to as the Business Regulations), notified in exercise of power under Clause (c) of Section 79 of the Electricity (Supply) Act, 1948, which governs the procedure and conduct of business of the Electricity Service Commission, U.P. State Electricity Board, so as to contend that under the residuary powers provided by Regulation 70 of the Business Regulations, the Commission could have taken such a decision. Sri Mishra, however, could not produce before us any specific provision in either the Service Regulations or the Business Regulations where under the Electricity Service Commission had the power of prescribing minimum cut off marks in the qualifying examination as an eligibility criterion to participate in the recruitment process. Regulation 70 of the Business Regulations on which Sri Mishra placed reliance to justify the action of the Commission, provides as follows:-
"Commission may deal in such manner as they deem fit with any matter not specifically provided for in these Regulations."
8. We were also taken through the various provisions of the Business Regulations. Regulations 30, 31 and 74 of the Business Regulations appeared to be relevant for the controversy in issue, which we are reproducing herein below:-
"30. Examinations and conduct of Examination-
(i) The Commission shall conduct examinations for the various posts to be filled by competitive examinations.
(ii)The examination may be held at one or more centres at any place or places in Uttar Pradesh as the Commission may decide. The Commission shall appoint an incharge for each centre who shall be responsible for conduct of examination at his centre.
(iii)The Commission may hold combined competitive examinations for selection to various posts under the purview of the Commission.
31. The Commission shall advertise the vacancies for which selections are to be made in the manner and through the medium/media prescribed by them, and invite applications from eligible candidates.
74. Where selection is based on written examination and interview the Commission shall call candidates for interview on the basis of merit as disclosed at the written test. The Commission shall decide the number of candidates to be called for interview, subject to the condition that if the number of candidates who pass the examination is less than double the number of vacancies, all the candidates shall be called for interview."
9. A perusal of Regulation 31 of the Business Regulations would go to show that the Commission is required to advertise the vacancies for which selections are to be made in the manner and through medium/media prescribed by them and invite applications from eligible candidates. Regulation 30 provides for the manner in which the examinations are to be conducted by the Commission as also that the Commission may hold combined competitive examination for selection to various posts under the purview of the Commission. Regulation 74 reveals that where selection is based on written examination and interview, the Commission shall call the candidates for interview on the basis of merit as disclosed on the written test and that it is for the Commission to decide the number of candidates to be called for interview, subject to the condition that if the number of candidates who pass the examination is less than double the number of vacancies all the candidates shall be called for interview.
10. Thus, from the Business Regulations it does not appear that at the threshold of the recruitment process, the Commission can prescribe for a condition, higher than the prescribed eligibility, for being eligible to apply under the advertisement.
11. No doubt, by various judicial pronouncements short-listing or screening has been accepted as a pretext to limit the number of candidates to be called for interview. Two methods are generally adopted for screening and short-listing: (a) by holding competitive examination and calling candidates for interview on the basis of merit in such competitive examination; and (b) by screening the applications on the basis of certain procedure and criteria thereby limiting the number of candidates to be called for interview.
12. In State of Punjab and others Vs. Manjit Singh and others: (2003) 11 SCC 559 the Apex Court took the view that the Commission cannot lay down the cut off marks so as to exclude the candidate fulfilling the minimum qualification as per the relevant rules at the threshold itself as the same would amount to altering the minimum qualification as laid down in the relevant rules for which the Commission had no power. The relevant observations of the Apex Court are found in paragraph nos.7, 8, 10 and 11 of the report, which are reproduced herein below:-
"7. Now adverting to the point under consideration, it may be observed that so far the powers and functions of the Commission in shortlisting of candidates is concerned, there can certainly be no doubt about it. Say for example 10,000 candidates apply for recruitment to 100 posts, it would obviously not be possible to take full test /examination and interview of such large number of applicants, though eligible. In that event shortlisting of the candidates by screening out those, in respect of whom it would serve no purpose to call them for further test, may be excluded by adopting the method of screening test. Generally speaking a ratio of 3-5 candidates for one post is normally accepted depending upon the number of seats. Therefore, for 100 posts the selecting body may in order of merit take out about first 500 candidates for further tests/interview. The rest of the candidates would be screened out. No candidate excluded by adopting such a method for shortlisting can raise any grievance whatsoever.
8. But for such shortlisting as indicated above, it is not necessary to fix any minimum qualifying marks. Any candidate on the top of the list at number 1 down upto 500 would obviously constitute the shortlisted zone of consideration for selection. For the purpose of elaboration it may be observed that in case some cut-off marks is fixed in the name of shortlisting of the candidates and the number of candidates obtaining such minimum marks, suppose is less than 100 in that event screening test itself will amount to a selection by excluding those who though possess the prescribed qualification and are eligible for consideration but they would be out of the field of consideration by reason of not crossing the cut-off marks as may be fixed by the recruiting body. This would not be a case of shortlisting. In shortlisting, as observed above, any number of candidates required in certain proportion of the number of vacancies, they may be shortlisted in order of merit from serial no. 1 upto the number of candidates required.
10. As observed earlier, for the purpose of shortlisting it would not at all be necessary to provide cut-off marks. Any number of given candidates could be taken out from the top of the list upto the number of the candidates required in order of merit. For example, there may be a situation where more than required number of candidates may obtain marks above the cutoff marks say for example out of 10,000 if 8,000 or 6,000 candidates obtain 45% marks then all of them may have to be called for further tests and interview etc. It would in that event not serve the purpose of shortlisting by this method to obtain the given ratio of candidates, and the vacancy available. For 100 vacancies at the most 500 candidates need be called. If that is so any candidate who is otherwise eligible upto the 500th position whatever be the percentage above or below the fixed percentage would be eligible to be called for further tests. Thus the purpose of shortlisting would be achieved without prescribing any minimum cut-off marks.
11. In the case in hand, it was not for the Commission to have fixed any cut- off marks in respect of reserved category candidates. The result has evidently been that candidates otherwise qualified for interview stand rejected on the basis of merit say, they do not have the upto the mark merit, as prescribed by the Commission. The selection was by interview of the eligible candidates. It is certainly the responsibility of the Commission to make the selection of efficient people amongst those who are eligible for consideration. The unsuitable candidates could well be rejected in the selection by interview. It is not the question of subservience but there are certain matters of policies, on which the decision is to be taken by the Government. The Commission derives its powers under Article 320 of the Constitution as well as its limits too. Independent and fair working of the Commission is of utmost importance. It is also not supposed to function under any pressure of the government, as submitted on behalf of the appellant Commission. But at the same time it has to conform to the provisions of the law and has also to abide by the rules and regulations on the subject and to take into account the policy decisions which are within the domain of the State Government. It cannot impose its own policy decision in a matter beyond its purview."
12. A Full Bench of this Court in Gaurav Tripathi Vs. State of U.P. and others: 2010 (78) ALR 525, after considering various judgments, summarized the law with regards to screening and short-listing applicants /candidates to be called for interview. The relevant paragraph of the Full Bench judgment is being quoted herein below:-
"114. We may summarize the principles in regard to the question of screening and short-listing the applicants by laying down the procedure and the criteria in order to restrict the number of candidates to be called for interview:
(1) (a) Even if it is not provided for in the Rules/Advertisement etc., the Selection Body may resort to screening and short-listing in order to restrict the number of candidates to be called for interview.
(b) For this purpose, the Selection Body may lay down the procedure and the criteria.
(c) The procedure and the criteria for screening and short-listing must be rational and reasonable.
(d) In case, the relevant rules prescribe minimum qualifications for recruitment, the criteria for short-listing must be based on such minimum qualifications. Thus, if minimum qualifications contemplate "academic qualification", the criteria may prescribe higher academic qualifications for short-listing. Similarly, if minimum qualifications contemplate "experience" then the criteria may provide for higher experience for short-listing.
(e) "Experience" is an objective, reasonable and rational criterion. But if minimum qualifications do not require "experience" then this may not be a criterion for screening and short-listing.
(f) The candidates who fulfill the minimum qualifications, cannot be excluded at the threshold by changing the minimum qualifications or providing for cut-off marks. However, it is open to the Selection Body to provide certain marks for higher qualifications - i.e., for higher academic qualifications where minimum qualifications provide for academic qualifications, or for higher experience where minimum qualifications provide for experience. It is also open to the Selection Body to prepare a merit list on the basis of minimum qualifications, and then call requisite number of candidates for interview on the basis of such merit list.
In short, the minimum qualifications cannot be changed by the Selection Body so as to exclude the candidates fulfilling such minimum qualifications. However, for screening and short-listing, the Selection Body may provide marks for higher qualifications, or may prepare merit list on the basis of such minimum qualifications and call requisite number of candidates for interview on the basis of such merit list.
2. If the Rules/Advertisement provide for screening and short-listing, and lay down the procedure and the criteria in this regard, then such procedure and criteria must be strictly adhered to for screening and short-listing. No deviation is permissible from such procedure or criteria."
13. Taking a conspectus of the law governing the principles to be followed for screening/short-listing of candidates, it is well settled that for shortlisting, it is not necessary to fix any minimum qualifying marks at the threshold. The candidates who fulfill the minimum qualifications, cannot be excluded at the threshold by changing the minimum qualifications or providing for cut-off marks. Although it is open to the recruitment body to prepare merit list on the basis of such minimum qualifications and call requisite number of candidates for interview on the basis of such merit list, but it cannot provide higher cut off marks to exclude eligible candidates at the threshold. As provided by the apex court, vide para 10 of the judgment in the case of State of Punjab v. Manjit Singh (supra), for the purpose of shortlisting it would not at all be necessary to provide cut-off marks. Any number of given candidates could be taken out from the top of the list up to the number of the candidates required in order of merit. For example, there may be a situation where more than required number of candidates may obtain marks above the cutoff marks say for example out of 10,000 if 8,000 or 6,000 candidates obtain the cut off marks then all of them may have to be called for further tests and interview etc. It would in that event not serve the purpose of shortlisting by this method to obtain the given ratio of candidates, and the vacancy available. For example, for 100 vacancies if, at the most, 500 candidates need be called then any candidate who is otherwise eligible up to the 500th position whatever be the percentage above or below the fixed percentage would be eligible to be called for further tests. Thus the purpose of shortlisting would be achieved without prescribing any minimum cut-off marks. Further, we may observe that where there is a written competitive examination, providing higher cut off marks at the threshold, by changing the minimum qualifications, to exclude the candidates, who fulfill the minimum qualification, from even applying is not at all justified in absence of a specific power provided for that purpose under the Statutory Rules/Regulations. As no statutory Rule/Regulation has been shown to us and, particularly, when the advertisement itself provides for a written test, we do not find any rational basis to provide for cut off marks of 60% for the General and OBC candidates and 55% marks for SC/ST candidates for being eligible to apply for undergoing the recruitment process.
14. For the reasons mentioned above, the writ petition deserves to be allowed and is, accordingly, allowed. The condition No.4 (C) in the Advertisement No.03/VSA/2013 (Annexure No.2 to the writ petition) is hereby quashed. The respondent no.3 is directed to issue and publish an advertisement by way of corrigendum thereby providing reasonable time to the eligible candidates to apply and it will also notify a fresh date for the written examination thereby giving all candidates a reasonable opportunity.
15. It is made clear that we have not adjudicated on the right of the Electricity Service Commission to adopt a rational screening/short-listing process after receiving the applications from all the eligible candidates, as is permissible in law.
Order date: 11.10.2013 Sunil Kr. Tiwari