Allahabad High Court
Sushil Kumar Srivastava And Anr. vs U.P. Public Service Commission on 12 April, 2002
Equivalent citations: 2002(3)AWC1839, (2002)3UPLBEC2488
Author: Ashok Bhushan
Bench: Ashok Bhushan
JUDGMENT Ashok Bhushan, J.
1. Heard counsel for the petitioners and Sri B. N. Singh appearing for Uttar Pradesh Public Service Commission. Counter and rejoinder-affidavits have been exchanged and both the parties have agreed that writ petition be itself finally decided.
2. By this writ petition, the petitioners have prayed for writ, order or direction of suitable nature commanding the respondents to permit the petitioners to appear in the personality test of Regional Inspector (Technical)/ Assistant Regional Inspector (Technical) Examination, 1999 scheduled to be held on 4/5/6th January, 2001, treating the petitioners as having qualified for the same on the basis of the marks secured by them in the written and practical test. A further prayer has been made seeking a writ, order or direction commanding the respondents to treat the petitioners as having qualified for the personality test in pursuance to the above mentioned, examination on the basis of the aggregate marks secured by them on the basis of written and practical test and to allow the petitioners to appear in personality test and to declare final result on such basis without causing any obstruction therein.
3. The facts of the case as emerge from pleadings of the parties are ; Uttar Pradesh Public Service Commission issued an advertisement No. A-4/E-1/1999 published in the news paper 'Rashtriya Sahara' dated 3rd July, 1999, inviting applications for the post of Regional Inspector (Technical)/ Assistant Regional Inspector (Technical) copy of the said advertisement has been annexed as Annexure-2 to the writ petition. The petitioners claim to be eligible for the aforesaid post as per their qualifications. The Uttar Pradesh Public Service Commission rejected the candidature of both the petitioners. The candidature of petitioner No. 1 was rejected by the Uttar Pradesh Public Service Commission on the ground that petitioner No. 1 did not fulfil the required eligible qualifications whereas candidature of petitioner No. 2 was rejected on the ground that petitioner No. 2 has become overage. Petitioner No. 1 filed a writ petition which was dismissed by learned single Judge against which Special Appeal No. 516 of 2000 was filed by petitioner No. 1 in which an interim order was granted on 25th August, 2000 to the following effect :
"Connect with Special Appeal No. 508 bf 2000.
Admit.
No notice need be served since the respondents are appearing through their Advocate and have made their submission.
Learned counsel for the respondents is granted two weeks time to file counter-affidavit and the appellant will have one week thereafter to file rejoinder-affidavit.
There will be an interim order directing the respondents to allow the, appellant to appear in the examination scheduled to take place on 26.8.2000. The result of the examination of the appellant shall abide the result of the special appeal."
Similarly petitioner No. 2 also filed Writ Petition No. 34580 of 2000 in which an Interim order was passed on 9th August, 2000, directing that petitioner No. 2 will not be precluded from taking the examination on the basis of the orders Impugned therein whereby his candidature has been rejected on the ground that he has become overage. In pursuance of the aforesaid interim orders dated 25th August, 2000 and 9th August, 2000, both the petitioners appeared in the written examination and practical examination. The result of aforesaid examinations was declared on 25th November, 2000, in which both the A.W.C. 116 petitioners were not declared selected. It has been stated that there were 15 posts of Regional Inspector (Technical) and 47 posts of Assistant Regional Inspector (Technical) but only 77 candidates were declared selected. It was submitted that normally candidates in the interview are called thrice to the vacancies but only 77 candidates were called in the interview. It has been stated that Uttar Pradesh Public Service Commission has fixed minimum level of proficiency, which is required to be achieved by a candidate before declaring them qualified. It is pleaded by the petitioners that marks secured by them in the written examination and practical test are more than 40% but they are being treated as not having qualified on account of petitioners having secured less than 40% in the written examination even though they have secured more than 40% marks aggregate in the written and practical test. In paragraph 22 of the writ petition, it is specifically pleaded that in the past Uttar Pradesh Public Service Commission has treated the candidates as qualified for appearing in the interview for the Regional Inspector (Technical)/ Assistant Regional Inspector (Technical), who have secured more than 40% aggregate of written and practical test and the said practice has been departed for the first time in the selection in question in which the Uttar Pradesh Public Service Commission is insisting upon having secured 40% marks on the minimum specifically for the written test and specifically for practical test. With the aforesaid pleadings, the petitioners have filed the present writ petition.
4. By an interim order passed by this Court on 2nd January, 2001, the petitioners were permitted to appear in the interview. The petitioners were permitted to appear in the interview by the Uttar Pradesh Public Service Commission in pursuance of the interim order.
5. A counter-affidavit and a supplementary counter-affidavit has been filed by the Uttar Pradesh Public Service Commission. In the counter-affidavit, it has been stated that both the petitioners could not secure minimum qualifying marks of 40% in the written test, hence they have rightly not been called for the interview. Reference has been made to the advertisement and it is contended that the advertisement itself indicated that only those candidates will be called for the personality test, who have qualified in the written and practical test. It has been stated that in exercise of power under Rule 15(3) of the Uttar Pradesh Transport (Subordinate) Technical Service Rules, 1980 (hereinafter referred to as 1980 rules), the Uttar Pradesh Public Service Commission is empowered to fix minimum standard fqr calling the candidates for interview and the petitioners having failed to secure 40% marks in written test, which is fixed by the Commission as minimum qualifying marks, they are not entitled to be called for interview. In the supplementary counter-affidavit filed by the Uttar Pradesh Public Service Commission, the Commission have brought on the record copy of the decision of the Commission dated 19th November, 1977, by which minimum marks have been fixed for being called in the interview. The said decision has been annexed as Annexure SCA-2 to the supplementary counter-affidavit. The Uttar Pradesh Public Service Commission has also filed copy of the decision dated 23rd November, 2000, which has been referred to in the affidavit as decision of the Commission dated 23rd November, 2000. Copy of the said decision has been annexed as Annexure SCA-1. Rejoinder-affidavit has also been filed by the petitioners reiterating their submission of the writ petition.
6. The counsel for the petitioners has raised following submissions :
(1) According to Rule 15(3) of 1980 rules, the Uttar Pradesh Public Service Commission can summon for interview such number of candidates as on the result of the written examination has come up to the standard fixed by the Commission in this respect and the marks awarded to each candidate in the interview shall be added to the marks obtained by him in the written examination. It was contended that the practical examination is a part of written examination as contemplated under Sub-rule (3) of Rule 15, hence the minimum standard has to be judged by aggregating the marks obtained by a candidate in the written examination as well as practical examination. The Uttar Pradesh Public Service Commission ought to have applied the criteria of having secured 40%, marks of aggregating of both written examination and practical test. The counsel for the petitioners contended that unless the practical examination is not treated as part of written examination, holding of said practical examination and allocating marks for the said examination will be beyond the purview of Sub-rule (3) of Rule 15.
(2) The Uttar Pradesh Public Service Commission in the past has been applying the criteria of 40% marks by aggregating the marks of written and practical examination and candidates were called for interview on that basis. The said practice which was adopted by Uttar Pradesh Public Service Commission has for the first time being departed in the examination in question, which is not permissible.
(3) The decision of the Uttar Pradesh Public Service Commission dated 19th November, 1977, brought by the respondents themselves on the record clearly contemplates that standard of 40% marks has to be applied on the aggregate of examination for a particular service for calling the candidates in the interview. The decision dated 23rd November, 2000 (Annexure SCA-1 to the supplementary counter-affidavit) which is being referred by the respondents as decision of the Commission is not a decision of the Commission but is a decision of the Pariksha Samiti of the Commission. There is no other decision of the Commission apart from earlier decision dated 19th November, 1977, hence the commission cannot insist for having qualifying marks separately in the written and practical examinations.
7. Sri B.N. Singh, Advocate appearing for the Uttar Pradesh Public Service Commission refuted the contentions of the counsel for the petitioners. Sri B.N. Singh submitted that Uttar Pradesh Public Service Commission is fully empowered to fix the minimum standard which a candidate is required to achieve in the written examination by virtue of Rule 15(3) of 1980 Rules. He has submitted that the Court cannot interfere with the right of the Commission in fixing the minimum standard. He further contended that decision dated 23rd November, 2000, is by the Commission which clearly provides that candidate has to obtain 40% minimum marks both in written and practical examination. He has placed reliance on the following decisions :
(1) State of U.P. v. Rafiquddin and Ors., AIR 1988 SC 162 ;
(2) State of Andhra Pradesh and Anr. v. Sadanandam and Ors., 1989 Supp (1) SCC 574;
(3) Rakesh Kumar Tiwari v. State of U.P. and Ors. Judgment dated 26th March, 2001 (All HC).
8. From the submissions raised by counsel for both the parties, the main issue, which arises for determination in this case, is as to whether for calling a candidate in the Interview, a candidate has to separately obtain 40% marks in both, written and practical, or 40% marks have to be obtained by aggregating the marks of written and practical examination. It is the pleading of the petitioners that they have achieved more than 40% marks by aggregating their marks in the written and practical examination whereas the Uttar Pradesh Public Service Commission has stated that both the petitioners have not achieved the 40% marks in the written examination.
9. The recruitment on the post of Regional Inspector (Technical)/ Assistant Regional Inspector (Technical) is governed by 1980 Rules. Part 5 of the said rules provides procedure for recruitment. Rules 14 and 15 are the relevant rules for direct recruitment. Rules 14 and 15 of 1980 Rules are quoted as below :
"14. The appointing authority shall determine and intimate to the Commission the number of vacancies to be filled during the course of the year as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and other categories under Rule 6.
15. (1) Applications for permission to appear in the competitive examination shall be called by the Commission in the prescribed form which may be obtained from the Secretary to the Commission on payment.
(2) No candidate shall be admitted to the examination unless he holds certificate of admission, Issued by the Commissioner.
(3) After the results of the written examination have been received and regulated, the Commission shall, having regard to the need for securing due reservation of the candidates belonging to the Schedule Castes, Scheduled Tribes and other categories under Rule 6, summon for interview such number of candidate as on the result of the written examination have come up to the standard fixed by the Commission in this respect. The marks awarded to each candidate at the interview shall be added to the marks obtained by him in the written examination.
(4) The Commission shall prepare a list of candidates in order of their proficiency as disclosed by the aggregate of marks obtained by each candidate at the written examination and interview and recommend such number of candidates as they deem fit for appointment. If two or more candidates obtain equal marks in the aggregate the name of the candidate obtaining higher marks in the written examination shall be placed higher in the list. The number of names in the list shall be large (but not large by more than 25 per cent) than the number of vacancies. The Commission shall forward the list to the appointment authority.
Note. -- The syllabus and rules for the competitive examination shall be such as may be ................. by the Commission from time to time with the previous approval of the Government."
It will also be useful to note the contents of advertisement as mentioned in paragraph 13 of the advertisement. Paragraph 13 of the advertisement is quoted as below :
^^13- ijh{kk gsrq fo"k; ,oa ikB~;e fuEuor gS %& (1) A paper on Highway Code, the Motor Vehicles Act and the Uttar Pradesh Motor Vehicles Rules.
(Marks 50 : Time 2 hours) (2) A paper consisting of question on the following subjects :
(i) Maintenance and upkeep of motor transport vehicles ; (ii) Principal Factor relating to road safety ; (iii) Modern first and second line repairs of transport vehicles ; (iv) Mechanism and working of petrol and diesel driven engines ; (v) Service check-up and model routine.
(Marks 100 : Time 3 hours) (3) A practical test on motors.
(Marks 100) (4) Personality test.
(Marks 30) Personality test will be held by the Commission after the written and practical examination on dates to be communicated in due course and will be confined to such number of candidates only as have qualified in the written and the practical test.
Candidates will also have to pass a test in driving heavy transport vehicles."
From the advertisement aforementioned, it is clear that there are two written papers having marks 50 and 100. Practical test of motor is for 100 marks and personality test is for 30 marks. The advertisement further states that personality test will be held by the Commission after the written and practical examination on dates to be communicated in due course and will be confined to such number of candidates only as have qualified in the written and practical test. The candidates will also have to pass a test in driving heavy transport vehicles. The condition on candidates to pass a test in driving heavy transport vehicle is an additional condition apart from above mentioned examination and the practical test.
10. Rule 15(3) contemplates that marks awarded to each candidate in the interview shall be added to the marks obtained by him in the written examination. The Sub-rule (4) further provides that Commission shall prepare a list of candidates in order of their proficiency as disclosed by aggregate of marks obtained by each candidate in the written examination and the interview and recommend such number of candidates. The Sub-rules (3) and (4) of Rule 15 of 1980 Rules only contemplate written examination and the personality test and the merit list is to be prepared on the basis of aggregate of aforesaid marks. Practical test is not separately mentioned or indicated in any of the aforesaid rules. The advertisement clearly demonstrate that for practical test 100 marks are allocated and obviously the said marks are to be added while preparing the final merit list after the written and interview. The practical test has to be held as integral part of the written examination otherwise it may fall from the purview of said Sub-rules (3) and (4), marks of any test which are not included in the written examination or personality test cannot be added for determining the merit. The contention of counsel for the petitioners that practical test is integral part of the written examination has substance. The advertisement apart from mentioning a practical test also require candidate will also have to pass a test in driving heavy transport vehicles. The aforesaid test has to be mandatorily passed by the candidates but no marks have been allocated to the said test. Thus, the said test of having to pass driving heavy transport vehicles is not a part of the written examination and thus requirement of such in the advertisement is in addition to the practical test.
11. The practical test being integral part of the written examination, the marks obtained by a candidate in the practical test, thus, have to be aggregated with the written examination and the minimum qualifying marks has to be applied thereafter. The petitioner in the writ petition has specifically pleaded in paragraph 22 that in past the Uttar Pradesh Public Service Commission has treated the candidates qualified for appearing in the interview who have secured more than 40% aggregate of written and practical test. It has further been pleaded that this practice has been departed for the first time in the selection in question, i.e., 1999 selection in which Commission is insisting for securing 40% marks separately in the written and practical tests. The aforesaid pleading of paragraph 22 of the writ petition have not been specifically denied in the counter-affidavit. In paragraph 10 of the counter-affidavit, emphasis has been laid on the advertisement, which requires qualifying in the written and practical tests. From the aforesaid pleading, it is clear that Uttar Pradesh Public Service Commission in past, prior to 1999 examination, has always considered the candidates qualified for interview, who secured 40% aggregate marks in written and practical tests. In the selection of 1999, the said practice has been departed presumably on the basis of the decision dated 23rd November, 2000, which has been filed as Annexure SCA-1 to the supplementary counter-affidavit. After the decision of the Commission dated 19th November, 1977, no other material has been brought on the record to show that aforesaid decision was departed or changed at any subsequent time. Much reliance has been placed by counsel for the respondents on the decision dated 23rd November, 2000, filed as Annexure SCA-1 to the supplementary counter-affidavit. The aforesaid documents, Annexure SCA-1 to the supplementary counter-affidavit is extracted below :
^^lEHkkxh; fujh{kd izkfof/kd@lgk;d lEHkkxh; fujh{kd izkfof/kd inksa dh fyf[kr ijh{kk dk ifj.kke rS;kj fd;s tkus ds lEcU/k esa ek- vk;ksx dk fnukd 23-11-2000 dk fu.kZ; % ^^ ijh{kk lfefr us fopkj fd;k A fopkj ds nkSjku ikB~;e lfefr }kjk fu/kkZfjr fu;e dk lw{erk ls voyksdu fd;k x;k A blls ;g Li"V gksrk gS&vkSj ;g ckr ijh{kk lfefr dh n`f"V esa mfpr Hkh gS&fd vH;FkhZ dks fyf[kr rFkk izk;ksfxd ijh{kk esa i`Fkd&i`Fkd U;wure vgZrk izkIr djuh pkfg, A vr,o rnuqlkj Js"Brk lwph cuk;h tk; A tgk rd izk;ksfxd ijh{kk esa U;wure vgZrk vadksa dk iz'u gS] vuqlwfpr tkfr@vuwlwfpr tutkfr ds fy, 55 izfr'kr rFkk nwljksa ds fy, 40 izfr'kr U;wUkre vgZrk jgsxh tSlk fd vk;ksx us lHkh izfr;ksfxrkvksa ds fy, iwoZ ls gh ekud r; dj fn;k gS A** Although the heading of the aforesaid decision mentions it to be decision of the Commission but the decision as quoted above clearly mentions that the said decision is of Pariksha Samiti. The Pariksha Samtti is not the Uttar Pradesh Public Service Commission. Further the decision dated 23rd November, 2000, as quoted above, does not suggest of taking any separate and independent decision departing from earlier decision of the Commission rather the said decision dated 23rd November, 2000, is an expression of the opinion of Pariksha Samiti. Pariksha Samiti or any other body of the Commission is bound by the decision of the Commission. The counsel for the petitioners is correct in his contention that the said decision dated 23rd November, 2000, is not the decision of the Commission and is a decision of Pariksha Samiti, hence this will have no effect on the earlier decision of the Commission dated 19th November, 1977, which still holds the field. The contention of the counsel for the petitioners that said decision was taken on 23rd November, 2000, whereas the written and practical examinations were already held on 26th August, 2000 and 16 to 19th October. 2000, hence the said decision has no applicability on the written examination which was already held need not to be considered since it has already been observed that the decision dated 23rd November, 2000, is not the decision of the Commission but is only a decision of Pariksha Samiti which has no effect on the earlier decision of the Commission dated 19th November, 1977.
12. The decision of the Commission dated 19th November, 1977, paragraph 2, contemplates that no candidate be called for interview for any service, who has not secured aggregate of 40% marks, paragraph 3 of the aforesaid decision is extracted below :
^^3 lk/kkj.kr% fdlh Hkh lsok ds fy, 40 izfr'kr pkyhl izfr'kr vad ;ksx ls de ds vH;FkhZ dks lk{kkRdkj ds fy, u cqyk;k tk; A** The aforesaid decision of 19th November, 1977, was taken by the Commission with regard to various competitive examinations held by the Commission. Different competitive examinations have several papers. Even when there are several papers in a particular examination, the requirement is aggregate of 40% mark, the decision dated 19th November, 1977, does not indicate prescription of having 40% marks in different papers or test of particular competitive examination. The decision dated 19th November, 1977, mentions 40% aggregate which is of significance. From the above, it is clear that decision dated 19th November, 1977, still holds field and has not been changed by the Commission by any subsequent decision. The Commission was itself treating the aforesaid decision dated 19th November. 1977, requiring aggregate marks of 40% in the written and practical test, thus taking of different view in the 1999 examinations is without any reasonable basis.
13. The counsel for the respondents has placed much reliance on the decision of the Apex Court in State of U.P. v. Refiquddin and others (supra). In the aforesaid case, the Apex Court considered the provisions of U.P. Civil Services (Judicial Branch) Rules, 1951. Rule 19 as it stood prior to amendment vide notification dated January 31, 1972. Rule 19 which was considered by the Apex Court is quoted as below :
"19. List of candidates approved by the Commission. --The Commission shall prepare a list of candidates, who have taken the examination for recruitment to the service 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 merits on the basis of their general suitability for the service :
Provided that in making their recommendations the Commission shall satisfy themselves that the candidate :
(i) has obtained such an aggregate of marks in the written test that he is qualified by his ability for appointment to the service ;
(ii) has obtained in the viva voce test such sufficiently high marks that he is suitable for the service."
In the aforesaid case, the respondents had not achieved minimum marks fixed for the viva voce. Rule 19 was subsequently amended by which the requirement of obtaining particular marks in the viva voce was done away. It was held by the Apex Court in paragraph 9 :
"9. .........................................
The viva voce test is a well recognised method of judging the suitability of a candidate for appointment to public services and this method had almost universally been followed in making selection for appointment to public services. Where selection is made on the basis of written as well as viva voce test, the final result is determined on the basis of the aggregate marks. If any minimum marks, either in the written test or in viva voce test are fixed to determine the suitability of a candidate, the same has to be respected. Clause (ii) of the proviso to Rule 19 clearly confers power on the Commission to fix minimum marks for viva voce test for judging the suitability of a candidate for the service. We do not find any constitutional legal infirmity in the provision."
14. From the aforesaid, it is clear that the above decision is not applicable in the present case. There was specific Rule 19 prescribing sufficiently high marks in the viva voce. In the present case, there is neither any requirement in any rule or decision of Commission requiring securing 40% separately in written and practical. Thus, this case do not help the respondents at all.
15. The counsel for the respondents further placed much reliance on paragraphs 12 and 16 of the aforesaid judgment in which the Apex Court held that having regard to the nature and characteristics of a competitive examinations, it is not possible nor necessary to give notice to the candidates about the minimum marks which the Commission may determine for purposes of eliminating the unsuitable candidates.
16. The submission of counsel for the respondents on basis of the law as laid down by the Apex Court in the aforesaid case that Commission has power to fix the standard for qualifying in competitive examination is well founded. There cannot be any dispute that Commission has full and ample jurisdiction to lay down the criteria for fixing a minimum standard. The aforesaid power is specifically provided in Rule 15(3) of 1980 Rules. There is no lack of jurisdiction in the Commission to lay down the minimum qualifying marks nor there can be any error in fixing 40% marks for qualifying for the interview. The question is as to what is the criteria which is laid down by the Commission for applying the aforesaid qualifying marks. Whether the aforesaid qualifying marks have to be applied separately for written test and the practical test as in the examination in question or it has to be aggregated of both. The decision of the Commission dated 19th November, 1977 and the fact that Commission till 1999 examination applied the criteria of securing 40% marks of aggregate in written and practical tests clearly proves that the decision of the Commission dated 19th November, 1977, required having 40% aggregate and the said decision was correctly applied by the Commission. It goes without saying that Commission has full power to change, modify or suitably amend the criteria. The decision dated 23rd November, 2000, as relied by counsel for the respondents (Annexure SCA-1 to the supplementary counter-affidavit) not being decision of the Commission, it cannot be said that the said criteria was, at any point of time, changed, clarified or modified.
17. In view of the foregoing discussion, any candidate, who has secured 40% marks aggregate in the written and practical test in Regional Inspector (Technical)/Assistant Regional Inspector (Technical) examinations is qualified for being called in the interview and he cannot be rejected only on the ground that he has not secured separately 40% marks in the written examination.
18. The second decision relied by counsel for the respondents, i.e., State of Andhra Pradesh and Anr. v. V. Sadanandam and Ors. (supra), laid down that mode of recruitment and the category from which recruitment to a service should be made are matters within the exclusive domain of the executive. It is not for the judicial bodies to sit in judgment over the executive's decision in these matters. As observed above, the Commission has full jurisdiction to lay down the criteria for minimum standard as contemplated in Rule 15(3). In the present case, this Court is not holding that the prescription of criteria by the Commission is in any manner erroneous or unreasonable. The Commission has full jurisdiction to lay down the criteria. The aforesaid Apex Court judgment does not help the petitioner since it is neither the case, of the petitioners nor any submission has been advanced to the effect that criteria fixed by the Commission on 19th November, 1977, is erroneous or incorrect, rather in the present case the petitioners have based their submissions on the basis of the aforesaid decision of the Commission dated 19th November, 1977.
19. The third decision relied by counsel for the respondents i.e., judgment dated 26th March, 2001, in Rakesh Kumar Tiwari's case (supra) which is a case in which answer -sheet of the petitioners of that case was called for and it was held that both of them have failed in the examination. The Court did not, in the aforesaid judgment, lay down any proposition that 40% marks have to be secured separately in the written test. In the aforesaid case, the issue raised in the present writ petition was neither considered nor canvassed, hence the aforesaid case does not in any manner support the contention of counsel for the respondents.
20. From the aforesaid discussions, it is clear that in the examination of Regional Inspector (Technical)/ Assistant Regional Inspector (Technical), a candidate can be called for the interview, who secured 40% aggregate marks in written and practical tests. The petitioners have made out a case for grant of relief as prayed in the writ petition.
21. A writ of mandamus is issued to the respondents to treat the petitioners as having qualified for the personality test on the basis of the aggregate marks secured by them in the written and personality test and they be not treated ineligible for being called in the interview only on the ground that they have not secured 40% marks separately in the written test. It is, however, made clear that the result of petitioner No. 1 shall be subject to result of Special Appeal No. 516 of 2000 filed by petitioner No. 1 and pending in this Court as provided in the interim order dated 25th August, 2000 and similarly the result of petitioner No. 2 shall be subject to the orders in Writ Petition No. 34580 of 2000. The Commission is directed to declare the result of the petitioners subject to above.
22. The writ petition is allowed as indicated above.