Allahabad High Court
Prafulla Kumar (Roll No. 017260) & ... vs State Of U.P. Thru' Secy. Medical ... on 2 April, 2010
Author: Sunil Ambwani
Bench: Sunil Ambwani, Kashi Nath Pandey
1
Judgment reserved on 23.2.2010
Judgment delivered on 2.4.2010
CIVIL MISC. WRIT PETITION NO. 23022 of 2008
Prafulla Kumar and others vs. State of UP and others
Connected with
CIVIL MISC. WRIT PETITION NOS. 53761 of 2008; 29829 of
2008; 44070 of 2008; 46505 of 2008; 48538 of 2008; 56541 of
2008; 24358 of 2009; 23546 of 2009; 13950 of 2009; 19524 of
2009; 34894 of 2009 and 62303 of 2009
Hon'ble Sunil Ambwani, J.
Hon'ble Kashi Nath Pandey, J.
The petitioners applied and appeared in the selections held by the U.P. Public Services Commission (in short, the Commission) for appointment on 546 vacant posts of Health Education Officer, under the family welfare programme vide Advertisement No. 2/2005-06. By these writ petitions, they have prayed for quashing the entire select list dated 5.2.2008 published the Commission, after summoning the entire records of selection and for directions to the respondents to hold fresh selections in accordance with the law after giving age relaxation to the candidates, who have already applied in the selections.
Brief facts, giving rise to these writ petitions, are that the Commission issued advertisement No. 2/2005-06 on 2.7.2005 with the last date of application on 22.7.2005, for appointment on 546 posts of Swastha Shiksha Adhikari (Health Education Officer), a Gazetted post in the pay scale of Rs.5000-150-8000, out of which 256 posts were provided to be filled up from General category candidates; 158 posts from Other Backward Class candidates, 121 posts from Scheduled Caste candidates and 11 posts from Scheduled Tribe candidates. The reservations were also provided on horizontal basis to the dependents of freedom fighters, disabled persons and women in accordance with the rules applicable for such reservations. The advertisement provided a Graduate Degree in Sociology or Social Science or in any subject in Social Science to be the qualifications for appointment with preference to be given to the persons, who have 2 experience in extension work training under the family welfare programme and if all things are equal, the advertisement provided preference to the persons, who have served for 2 years in Territorial Army, or possess 'B' Certificate of National Cadet Corps. The candidates between the age of 21 to 35 were eligible with relaxations in the maximum age to the reserved category candidates.
It is stated in paragraph-6 of the writ petition, that as many as 30,000 candidates including the petitioners applied for the advertised posts. Since the applicants were very large in number, the Commission decided to hold a screening test carrying 150 marks with a limited object to reduce the number of applicants. All the petitioners appeared in the screening test with the roll numbers given in brackets, after their names in the array of parties. The result of the screening test held on 7.5.2006, was declared on 12.8.2006. A total number of 4600 candidates including the petitioners were declared to have passed the screening test. The interviews were conducted between 4.9.2006 to 7.10.2006, in which all the 4600 candidates including the petitioners appeared before the interview board, constituted by the Commission. The result was declared 12.8.2006. The petitioners were not selected.
The Commission published the answer key on its official website on which complaints were received regarding 14 questions out of 150. The Commission appointed an expert Committee to examine the allegations, and found that the five questions were void as they did not have correct answers in the options and that in case of 09 questions the answers in the answer key were wrong. The Commission corrected the error by cancelling the five void questions out of 150 of the question of the booklet, and modified the answers of nine questions by correct answers. The Commission declared fresh results on the basis of rectified answer sheet on 5.2.2007 and cancelled the previous results declared on 12.8.2006. The revaluation shifted some candidates by increasing their marks to take place amongst the successful candidates. In case of some others the marks were decreased resulting in their disqualification.
The petitioners have challenged the selections by the Commission 3 on the following grounds:-
(1) The Commission violated the procedure of selections provided in Rule 15 (2) of the U.P. Extension Educator Service Rules, 1985 by holding a screening test. The Rule provides for selections only by calling the candidates for interview and thereafter preparing a list of candidates in order of their merit as disclosed by the marks secured by each candidate in the interview.
(2) The Commission acted illegally in holding a screening test to shortlist the candidates for interviews in providing for cut of marks. (3) The Commission committed gross illegality in calling candidates in the ratio of 1:9 instead of its decision to call them in the ratio of 1:6, and thereby increasing the number of candidates to favour them in interviews.
(4) The Commission further erred in law in failing to provide separate cut of marks for other backward class candidates. (5) The Commission adopted a wholly illegal and arbitrary procedure in declaring 05 out of 14 wrong questions to be void and thereafter applying an incorrect formula for calculating the marks to be awarded on nine questions by providing value to each question and thereafter rounding up of the marks.
(6) The Commission also committed illegality in adjusting OBC candidates appearing with age relaxation as an added advantage in general category and thereby exceeding the reservation beyond 50%, causing reverse discrimination to the General Category candidates.
Shri W.H. Khan, Senior Advocate appearing for the petitioners in Writ Petition No. 23022 of 2008 submits that holding of screening test and adopting a procedure of cut of marks in the screening test was illegal and violative of Rule 15 of the U.P. Extension Educator Service Rules, 1985. The Commission under sub rule (2) has discretion to call such number of candidates for interview as it considers proper. This discretion, however, cannot extend to holding a screening test and thereafter providing for cut of marks for the purposes of calling candidates for interviews. He would submit that the forms of large number of candidates were accepted after the last date, and that in order to accommodate the favoured candidates the Commission relaxed the criteria fixed by it for calling candidates in the ratio of 1:9. He would submit that 4856 candidates were called for interview committing gross illegality in the selections. The Commission on 4 its own criteria, though fixed illegally could call only 3276 for candidates for interview in the ratio of 1:6. He further submits that the Commission was grossly negligent in preparing question papers with 14 wrong questions, misleading the candidates and playing fraud on them. The five wrong questions were declared void. Similarly 09 more should also have been declared void. Instead the Commission adopted a mysterious criteria in finding out the value of each questions and thereafter giving such value in proportion to the correct answers given by the candidates. The formula has no scientific basis and had actually worked to the disadvantage of those candidates, who had correctly answered the 09 questions. He would further submit that a large number of candidates placed at the bottom of the list were the favoured candidates, who secured their way in the selections by getting their forms accepted after the cut of date, and thereafter benefited from the formula adopted by the Commission for being called for interview.
Shri W.H. Khan has relied upon judgments in Ashok Kumar Yadav vs. State of Haryana (1985) 4 SCC 417; Krishan Yadav vs. State of Haryana (1995) 4 SCC 165, All India State Bank Officers Federation through its President vs. Union of India (1997) 9 SCC 151; Jasvinder Singh vs. State of Jammu and Kashmir (2003) 2 SCC 132; Vijay Syal vs. State of Punjab AIR 2003 SC 4023, State of Punjab vs. Manjit Singh (2003) 11 SSC 559, Inder Parkash Gupta vs. State of Jammu and Kashmir 2004 JKT (SC) 2 25 and Sanjay Singh vs. UP Public Services Commission Allahabad AIR 2007 SC 950 in support of his submissions both regarding violations of law in holding selections and the procedure adopted by the Commission in holding selections.
Shri Rakesh Pande, appearing for the petitioners in Writ Petition No.55761 of 2008 submits that the procedure followed by the Commission in selections violated Rule 15 (3) of the Rules of 1985. The Rules do not provide for screening test and leaves the discretion for calling the number of candidates to the Commission. The screening test was held dehorse the rules, in which the number of candidates were increased beyond 1:6 allowing the persons, who had not qualified to appear in the interviews. He 5 would submit that no waiting list was prepared. According to him some of the candidates had not joined, taking away the chances of those, who were next after them to be selected within the same year for the advertised vacancies.
Shri Rakesh Pande further submits that many 'Other backward Class' candidates were given age relaxation. They were illegally adjusted in the general category on the ground that they have secured more marks than general candidates, depriving general category candidates and in discriminating them in selections by increasing the reservations beyond the permissible limit of 50%. He also submits that once the OBC candidates filled up their choice to compete in the OBC category, they cannot be adjusted in the general category causing reverse discrimination to the general category candidates.
Shri P.S. Baghel, Senior Advocate appearing for the Commission submits that the advertisement No. 2/2005-06 was issued by the Commission for selections to 546 posts of Health Education Officer. These posts included 256 for general, 158 for Other Backward Class, 121 for Scheduled Caste and 11 for Scheduled Tribe by applying the notified percentage of reservations. The petitioners applied and appeared in the screening test without any protest on 7.5.2006. They were successful in the result of the screening test declared on 12.8.2006. After the declaration of the result many representations were received under (The) Right to Information Act, 2005, by the Commission about the marks and cut of marks in the key answers etc. provided on the website of the Commission. Some representations were made regarding incorrect answers given on the website. The Commission after due consideration decided to get these representations examined and found that apprehensions about some answers were correct. The Commission accordingly on the opinion of the Expert Committee decided to cancel the five questions out of 150 questions, and changed answers of the 09 questions from the question booklets which were present in the given options. On the basis of such rectified answer key the answer sheets were re-valued and rectified results were declared on 5.2.2007. The petitioners did not qualify in the rectified 6 result. A Writ Petition No. 9685/2007 Riyaz Khan and others vs. State of UP and others was filed and was finally disposed of on 15.1.2008 directing the Commission to re-examine the averments made in the paragraphs of the petition, in case the result is likely to be changed. By the same judgment this Court did not find any good ground to interfere with the criteria adopted by the Commission to give marks after correcting the answer key. The findings and observations of the Court are as follows:-
"It needs to be mentioned that even after the deletion of five questions, the result was declared afresh treating 150 marks as maximum marks and not 145 marks. According to the Commission, the candidates who had given correct answers of 15 questions, were awarded 16 marks (adding one mark); candidates who had given correct answers of 46 questions were awarded 48 marks (adding two marks); candidates who had given correct answers of 73 questions were awarded 76 marks (adding three marks), candidates who had given correct answers of 102 questions were awarded 106 marks (adding four marks); and the candidates who had given correct answers of 131 questions were given 136 marks (adding five marks). We do not find any ground to interfere on this count as we are of the considered opinion that the decision taken by the Commission is reasonable and correct.
In respect of the answers to the nine questions, the Expert Committee pointed out the correct answers to those nine questions and the answer sheets of the candidates were again checked by feeding the correct key answers and the marks obtained by the candidates have been corrected accordingly.
We do not doubt the bona fides of the Commission in appointing the Committee of Experts and nor do we have any reason to doubt the correctness of the decision taken by the Expert Committee constituted by the Commission.
There are certain allegations of facts in respect of certain candidates as to whether their candidature should have been accepted as has been mentioned in paragraphs 17-A and 17- B of the writ petition. Reply submitted by the respondents in the counter affidavit and supplementary counter affidavit is far from satisfactory and in view thereof, on our request, the officers present in the Court have agreed to re-examine the averments made in these paragraphs of the writ petition and in case the result is likely to be changed, they will hear the candidates who are likely to be affected and shall pass 7 appropriate orders before giving effect to the order.
In view of the above, nothing survives in this petition and the petition stands disposed accordingly."
Shri P.S. Baghel submits that on account of large number of candidates, who had applied for the posts, it was decided by the Commission to hold a screening test. The Commission decided to call the candidates for interview in the ratio of 1:6 in every category with a provision that the last merit percentage is rounded off, providing also for such other candidates to be interviewed, who had attained the marks up to the rounded of percentage. The Commission examined the complaints and appointed an Expert Committee. According to the opinion of the Expert Committee accepted by the Commission, it decided to cancel 05 questions out of 150 and modified the answers of 09 questions by correct answers, which were present amongst the options given and re-valuated the rectified answer keys. The criteria adopted by the Commission for re-valuation is given in paragraph-11 as follows:-
"11. That the contents of paragraph Nos. 15, 16 and 17 of the writ petition are wrongly interpreted, hence denied. As a matter of fact, the evaluation has been done on the basis of 150 maximum marks and because of the five questions had been deleted, as per policy of the Commission, the maximum marks i.e. 150 had been distributed into rest of 145 alive questions increasing the value of each question. Thus the value of each question will be 150/145 = 1.0344827 approximately in place of one mark. The calculation of one's obtained marks is very simple i.e. value of each question (150/145) x number of connected question done by the candidate.
It is further submitted that no classification amongst the candidates or categories have been given to any candidate for dead question as alleged and shown in the table of paragraph No. 15 of the writ petition. Actually the table shown being totally misconceived and it should be as follows:-
Number of correct Multiplied by the value of Obtained marks after questions done by each question i.e. 150 marks + rounding up candidate 145 questions 15 15x(150/145)=15.51 15.51 = 16 46 46x(150/145) =47.51 47.51 = 48 73 73x(150/145)= 75.51 75.51 = 76 102 102x(150/145)=105.51 105.51 =106 131 131x(150/145)=135.51 135.51 = 136 8 As per policy of the Commission, 0.5 and more than 0.5 is rounded up in successive whole number. Thus the table shows the result of distribution of 5 marks as the value of each question is increased. The number of correct questions shown in the table i.e. 15, 46, 73, 102 and 131 indicates the points of the reckoner of 145 questions when the marks are rounded up in successive whole number.
Accordingly, the evaluation has been done universally by the computer. It is also relevant to mention here that the method of evaluation adopted by the respondent no. 2 has already been upheld on 15.1.2008 by the Hon'ble High Court in Writ Petition No. 9685 of 2007 (Riyaz Khan vs. State of U.P. and others).
The allegations made in the paragraphs under reply regarding irregularities committed in preparing the result dated 5.2.2007 and of violation of Article 14 of the Constitution of India are baseless and misconceived, hence denied."
Shri Baghel further submits that the category of the candidates mentioned in paragraph-19 of the writ petition was modified by the Commission after scrutiny of the eligibility list. The 13 candidates named in paragraph-12 were found to be belonging to different categories in accordance with their forms and eligibility. They were accordingly assigned their respective categories, which included ex-service men, physically handicapped, and female, provided reservations on horizontal basis. Shri Ajai Kumar Singh with roll No. 12690 and Shri Ratan Shanker Dubey with roll No. 16032 were declared successfully in the modified result after scrutiny of their eligibility.
So far as number of vacancies is concerned, though no serious argument has been raised at the bar, it is stated by Shri Baghel that 546 posts of Health Education Officer (General), was advertised for direct recruitment by the Commission on 18.11.2004. The screening test was held on 7.5.2006, and the result was declared on 12.8.2006. The result was rectified and declared again on 5.2.2007. The vacancies allotted by the Government/department were not consistent with the rules and ratio of the reserved vacancies exceeded 50% against the decisions of Hon'ble Supreme Court. Accordingly, the State Government was informed by the Commission by its letter dated 28.6.2007 to examine and rectify the 9 vacancies. The Government rectified the vacancies as 158 for Other Backward Class, 115 for Scheduled Caste and 273 for general category. The vacancies of Scheduled Tribe became nil. The rectified requisition was received on 17.12.2007 and accordingly a corrigendum was issued for general information on 31.1.2008 and final result was declared on 4.2.2008. In Writ Petition No. 7735 of 2008 Ajai Kumar Nayak vs. State of UP and others and Writ Petition No. 9193 of 2008 Pradeep Kumar Gond vs. State of UP and others, these questions have been raised to which the Commission has filed a reply.
Shri Baghel submits that there is no illegality in the selections. The increase of candidates called for interview was on account of rounding off the marks obtained by them and that the questions, for which correct answers were not given in the options, were cancelled. The remaining questions, for which wrong answer was given in the answer key, were rectified in the same ratio in which the candidates had secured their marks to the 145 remaining questions. The formula adopted by the Commission is well accepted and has been consistently adopted by the Commission. He would submit that all the successful candidates had joined in June, 2008, and are now serving for more than one and half years. He has also raised objections to the maintainability of the writ petition in the absence of successful candidates, who may be affected by the decision of the writ petitions.
The U.P. Extension Educator Service Rules, 1985 provide for the cadre, recruitment, qualifications, procedure for recruitment, probation, confirmation, seniority and pay etc. The extension educator including the post of District Extension Educator, now called as Health Education Officer form a cadre of such number of posts in each category as may be determined by the Governor from time to time. The appointing authority under Rule 4 (2) may leave unfilled, or may hold in abeyance any vacant post without thereby entitling any person to compensation. The Governor may create such additional, permanent or temporary posts as he may consider proper. The sources of recruitment in Rule 5 provide both by direct recruitment and by promotion from amongst permanent State Family 10 Welfare Health Assistants and permanent male and female Social Workers who possess bachelors degree. The 75% posts in the cadre are to be filled up by direct recruitment and 25% by promotion. The note appended to Rule 5 provides that for the purposes of promotion a combined eligibility list shall be prepared. The reservation is applicable under Rule-6 in accordance with the orders of the Government in force at the time of recruitment. A candidate for direct recruitment must possess a Master's Degree from a recognized University in Sociology or any subject of Social Science. Rule- 8 further provides that a candidate having experience of extension work, and training under family welfare, shall be preferred. Rule 9 provides for preferential qualification of two year's service in Territorial Army or a 'B' certificate of National Cadet Corps. The procedure for direct recruitment is provided in part-V in Rule 14 and 15 quoted as below:-
"14. Determination of vacancies- 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. Procedure for direct recruitment.- (1) Application for being considered for selection by direct recruitment shall be invited by the Commission in the prescribed form, which may be obtained from the Secretary to the Commission on payment if any, (2) The Commission, shall, having regard to the need for securing due representation of the candidate belonging to the Scheduled Castes/Scheduled Tribes and other categories in accordance with Rule 6, call for interview such number of candidates, as it consider proper.
(3) The Commission shall prepare a list of candidate in order of their merit as disclosed by the marks obtained by each candidate in the interview. If two or more candidates obtain equal mark, the Commission shall arrange their names in order of merit on the basis of their general suitability for service. The number of the names in the list shall be larger (but not larger by more than 25 per cent) than the number of the vacancies, the Commission shall forward the list to the appointing authority."
The Commission, having regard to the need for securing due representation of the candidates belonging to the Scheduled Caste/Scheduled Tribe and other categories in accordance with Rule 6, is 11 required to call for interview such number of candidates as it considers proper. The Rule 15 (2) thus gives discretion to the Commission to decide, the number of candidates to be called for interview. In the present case, the Commission, as stated in the counter affidavit of Shri Om Prakash Misra, Section Officer, UP Public Services Commission, Allahabad decided to call candidates in the ratio 1:6 on the basis of their merit in the screening test. The number of candidates, however, increased due to the rounding off the last number of candidates in each category. The Commission, thereafter on the complaints received, cancelled five questions for which options were not provided and gave proportionate marks to the 9 wrong answers indicated in the answer key and consequently rectified the result of the screening test.
The petitioners have not given the names of the candidates in respect of whom, allegations have been made that their forms were accepted after the last date, nor any material has been placed before us with the dates on which these forms were accepted and that their names in the select list. We therefore do not propose to examine the allegations of malafides and bias.
In Ashok Kumar Yadav (supra) it was held by the Supreme Court in 1985 that where a composite test consisting of written examination followed by a viva voice test is held, the number of candidates, to be called for interview in order of the marks obtained in the written examination, should not exceed twice or at the highest thrice the number of vacancies to be filled up, if a viva voice test is to be carried out in a contrary and in a scientific manner, as it must be in order to arrive at a fair and satisfactory evaluation of the personality of a candidate. The interview must take anything between 10-30 minutes. In that case, the Haryana Public Services Commission called over 1300 candidates, who satisfied minimum eligibility requirement by securing a minimum of 45% marks in the written examination. The total number of candidates exceeded 20 times the number of available vacancies, which were justified in accordance with the rules but there was no obligation under the Rules on the Commission to call for viva voice test of the candidates, who satisfied the minimum eligibility requirement. The Commission could not be said to have acted with 12 malafides or with oblique motives as it was the common ground between the parties that such was the practice, which was consistently followed by the Haryana Public Service Commission over the years and there was nothing exceptional in it. The Supreme Court further held that the allegation with 10 out of 16 candidates, who topped the list in the written examination secured poor rating in viva voice, could also be a ground to hold a examination to be arbitrary as it was a merely on suspicious and that reasonably likelihood of bias could not be established only on the basis of number of candidates called for viva voice test. The appeals were allowed setting aside the judgment of the Division Bench of the Punjab and Haryana High Court by which the selections were quashed. The Supreme Court thereafter in view of the fact that unduly much number of candidates were called for interview and the marks allocated in the viva voice test were excessively high, directed all the candidates, who secured a minimum of 45% marks should be given one more opportunity of appearing in the competitive examination, which was to be held thereafter in accordance with the principles laid down in the judgment.
In Krishan Yadav (supra) in the year 1995 the Supreme Court quashed the selections and compensated the candidates on the basis of CBI enquiry in which it was found that the records of selections were fabricated and that the interviews were held. In All India State Bank Officers Federation through its President (supra) in the year 1997 the Supreme Court considered the matter of promotion on an application filed by the trade union. It observed in para-33 that interview marks represented by only 25% of the aggregate of 200 marks. In order to be eligible a candidate was required to obtain 60% of these 50 marks. Considering the fact, that the selections had to be made for appointment to the top executive cadre and keeping in view the job requirements and the nature of responsibility, the bank had raised the minimum qualifying percentage from 50 to 60 and reduced the total number of interview marks from 100 to 50. It was held that under the circumstances, it could not be contended that exaggerated weightage was given in the marks to be obtained in the interview.
In Vijai Sayal (supra) the Supreme Court in the year 2003 upheld 13 the judgment of the High Court dismissing the writ petition. It did not find the allocation of 150 marks for written test and 100 marks for interview for selections to the post of Assistant District Transport Officer to be illegal and arbitrary. The challenge was primarily concerned with the allocation of marks for interview. The Supreme Court followed the decision in Jasvinder Singh vs. State of Jammu and Kashmir 2003 (2) SCC 132 and held that there cannot be any hard and fast rule of universal obligation for allocation of marks for viva voice vis a vis the marks for written examination. In Manjeet Singh vs. ESI Corporation (1990) 2 SCC 367 the Supreme Court held that in the absence of any prescription of qualifying marks for the interview test, the same 40% as applicable for written examination was reasonable. In Anzar Ahamad vs. State of Bihar (1994) 1 SCC 150 the Court upheld the allocation of 50% marks for interview.
In State of Punjab vs. Manjit Singh (supra) the Supreme Court observed in paragraph-8 that for shortlisting, it is not necessary to fix any minimum qualifying marks. Any candidate on the top of the list at No. 1 upto 500 would obviously constitute the shortlisted zone of consideration for selections. In case some cut off marks is fixed in the name of shortlisting, 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 cutoff 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, may be shortlisted in order of merit from serial No. 1 upto the number of candidates required.
In paragraph-10 the Supreme Court observed that for the purposes 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 job of the list upto the number of 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 cut-off marks, then all of them may have to be 14 called for further test and interview. It would in that event not serve the purpose of shortlisting to obtain the given ratio of candidates, and the vacancies available. So far as reserved category candidates are concerned, the Supreme Court held in paragraph-11 that it was not for the Commission to have fixed any cut-off marks in respect of reserved category candidates. In such case the candidates otherwise qualified for interview would 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 and thus it was responsibility of the Commission to make the selections of efficient people amongst those who are eligible for consideration. The unsuitable candidates could well be rejected in the selection by interview. The Commission derives its powers under Article 320 of the Constitution of India as well as its limits too. It is not supposed to function under any pressure of the government. It has to conform to the provision of the law and to abide of the rules and regulations on the subject. It cannot impose its own policy decision in a matter beyond its purview.
In Inder Prakash Gupta vs. State of Jammu and Kashmir (supra) the Three Judges Bench in Supreme Court in the year 2004 considered the selections on the post of lecturers in Medical Education Department by the Commission. The High Court found that the statutory method of selections was not followed as the selection was to be made on the basis of interview alone and that the Commission provided for 100 marks for viva voice against 40. The High Court also found that no marks were assigned for research, experience, publication or previous record of work but refused to set aside the selections on the ground that the same had been made long ago and one of the respondents had also been promoted and instead gave certain directions regarding adjustment in the select list. The Supreme Court held that the Rule 8 of the Rules for selection did not speak of any viva voice test. The Commission was required to have regard to only academic qualification, teaching experience, research, experience and previous record of work. The Commission did not award any marks to some of the respondents. The Supreme Court found that though no hard and fast rule of universal obligation can be made for allocation of marks for 15 viva voice test. The allocation, however, made with an intention to abuse or misuse the exercise is liable to be struck down. Upholding the judgment of the High Court the Supreme Court directed to give the benefit to the appellants including the monetary benefit and seniority by placing them in the select list above the private respondents.
In Sanjay Singh (supra) the Supreme Court in the year 2007 in respect of examinations for filling up 347 posts of Civil Judge (Judicial Division) in which 51524 candidates appeared did not approve the scaling system adopted by the Commission in the written examination. It found that the raw marks, which are converted into scaled scores on an artificial scale, which assumed variables are not marks awarded to a candidate in a written examination, a figure arrived at for the purpose of being placed on a common scale. It can vary with reference to two arbitrarily fixed values namely assumed meaning and assumed 'Standard Meaning', of such scaled marks could not be considered as marks awarded to the candidates in written examination violating Rule 20 (3) and Note (1) of Appendix II of the Judicial Service Rules. The Supreme Court found that with the adoption of scaling system some candidates were selected inspite of securing less than 20% in a subject and held that a procedure of moderation would instead bring any considerable uniformity and consistency. The absolute uniformity and consistency, however, is impossible to be achieved where there are several examiners and the effort is only to achieve maximum uniformity criteria adopted by the Commission in the Public Services Examination. Where the candidates have choice to select only one paper out of 23 optional papers and where the question papers are of objective type, the scaling may be possible for optional papers. For compulsory papers which are of descriptive type the evaluation is done manually and the scaling is not resorted to. In such cases the moderation is the appropriate method to bring about uniformity.
The principles of law for the methods to be adopted by the Commission are thus fairly well settled. The selections must be held in accordance with the rules subject to the expediency, convenience and by adopting a fair and reasonable criteria conforming to the principles of non-
16arbitrariness, ensuring equality under Articles 14 and 16 of the Constitution of India.
In the present case, Rule 15 (2) provides that 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, call for interview such number of candidates as it considers proper. There were about 30000 candidates for 546 vacancies. It was not possible for the Commission to have interviewed all the 30,000 candidates, spending months or years with its present strength of members, and thus the Commission, in accordance with its established practice, called all the eligible applicants, for a written objective test for shortlisting the number of candidates to 1:6. The number of candidates increased beyond the ratio of 1:6, on the rounding off of the cut of marks in each category resulting into calling more number of applicants including the petitioners for interview. The interviews were held between 4.9.2006 to 7.10.2006. There are no allegations, that the candidates were not interviewed or were not given sufficient time. There are no pleadings to the effect that any candidate was unduly favoured in interview.
In Manjeet Singh (supra) for recruitment of 500 medical officers the challenge was made only for reserved category of Scheduled Caste. Out of 303 applicants, 270 appeared as general category, out of which 59 could clear the test and in that context the Supreme Court observed that in shortlisting any number of candidates required in certain proportion of number of vacancies may be shortlisted, and that no cut of marks are necessary to be provided. In the present case, there are no allegations that with the fixation of cut of marks to select 1:6, which is a fair proportion, there were less number of candidates in any category. The cut of marks in the present case were not to find out the merit amongst 30,000 candidates, who had applied for 545 posts, but for shortlisting them in the ratio of 1:6 for interviews. The Commission, in our view, did not commit any illegality or arbitrariness in holding a written objective type test to shortlist the candidates for the purposes of interviews.
In Andhra Pradesh Public Service Commission vs. Baloji 17 Badhavath and others (2009) 5 SCC 1, the Supreme Court upheld the shortlisting by holding preliminary examination including reserved category candidates. It held in paras 34, 36 and 43:-
"34. Submission of Mr. Rao that by reason of such a process, only the forward sections of backward classes who have the advantage of undergoing coaching classes, etc., would be given preference may not be correct. No statistical data had been placed before the High Court or before us. We have not been furnished any information as to on what basis such a contention could be raised. All the candidates are highly educated. Merit is not the monopoly of people living in urban areas. The State must adopt some criteria. It having regard to its limited resources cannot allow lakhs and lakhs of candidates to appear at the examination as also at the interview. It is bound to devise some procedure to shortlist the candidates.
36. Strong reliance has been placed by Mr. Rao on Sangram Singh v. Election Tribunal, wherein Vivian Bose, J. stated as under:(AIR p. 429, para 16) "16. Now a code of procedure must be regarded as such. It is 'procedure', something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it."
The said observation was made keeping in view the concept of justice. By reason of providing for a preliminary examination, the right of the reserved category candidates has not been taken away. The means cannot be allowed to defeat the ends which the constitutional scheme seeks to achieve.
43. One other aspect of the matter must be kept in mind. If category wise statement is prepared, as has been directed by the High Court, it may be detrimental to the interest of the meritorious candidates belonging to the reserved categories. The reserved category candidates have two options. If they are meritorious enough to compete with the open category candidates, they are recruited in that category. The candidates below them would be considered for appointment in the reserved categories. This is now a well-settled principle of law as has been laid down by this Court in several decisions. (See for example, Union of India v. Satya Prakash, SCC paras 18 to 20; Ritesh R. Shah v. Dr. Y.L. Yamul, SCR at pp. 700-701 and Rajesh Kumar Daria v. Rajasthan Public Service Commission, SCC para 9)"
18Coming to the number of void questions, and the award of marks on the value of each question to the 09 questions for which the correct answers was not provided by the answer key, we find that there was no prejudice to any petitioner by declaring 05 questions to be void. So far as determining the value of each question for 145 live questions, to increase the value to maximum marks of 150, the criteria adopted by the Commission was not unfair. The award of 09 marks to each by the candidates could be an unfair method, the Commission, therefore after finding out the value of each questions at 1.0344827, approximately in place of one mark by dividing 150 with 145 allocated the value by multiplying it with the number of correct questions answered by candidates in the same proportion. The method has been illustrated in the chart given in para-11. By this method, the value of each questions has been proportionally given in accordance with the correct questions answered by them. The method is reasonable and conforms to the principle of objectivity and rationality to be achieved in all the functions of the Commission. The evaluation done universally by the computer on the aforesaid method is not violative of Articles 14 and 16 of the Constitution of India. It has also been upheld by this Court in an earlier Writ Petition No. 9685 of 2007 decided on 15.1.2008.
The grounds of challenge taken by Shri Rakesh Pande also do not vitiate the selections inasmuch as Shri P.S. Baghel has stated that though no waiting list has been published, the names have been kept in the sealed cover to be forwarded to the State Government, if any person did not join. There are no material facts on record to the number of candidates which did not join to give any direction in that regard.
With regard to adjustment of Other Backward Class category applicants in the general category, the petitioners have not placed on record any such facts that the persons, who have taken advantage of the relaxation of age, have been given the added benefit of adjustment in the general category. It is now fairly well settled beginning from Indra Sawhney 1992 Supp (3) SCC 217 (para 807, 808), M. Nagraj vs. Union of India (2006) 8 SCC 212, (Para 60) that the person applying in reserved categories secures higher marks than the last in the general 19 category, he has to be adjusted in the general category and the resultant vacancy has to be offered and given to the persons in the reserved category. Rule 3 (6) of the U.P. Public Services (Reservations for Scheduled Caste, Scheduled Tribe and Other Backward Class) Act, 1994, has been held to be intra vires Article 14 and 16 of the Constitution of India. In Sanjeev Kumar Singh and others vs. State of UP and others 2007 (2) A.D.J. 150 (DB) and in Shiv Prakash Yadav vs. State of UP and others 2008 (2) A.W.C. 1351 this Court has upheld the validity of Section 3 (6) of the Act of 1994.
The selected candidates have joined in June, 2008, and have completed more than one and half years of active service. They have not been impleaded in this writ petitions. After the selected candidates have joined, the impleadment of only two of them in representative capacity does not serve the purpose of challenge to the validity of the selections. Unless all the persons, who have been selected or impleaded, the Court will be slow to interview with their selections. They have acquired right to be defended and thus the selections cannot be set aside in their absence violating principles of natural justice.
All the writ petitions are consequently dismissed.
Dt.2.4.2010 RKP