Uttarakhand High Court
Pramod Benjwal vs State Of Uttarakhand And Others on 6 November, 2017
Bench: K.M. Joseph, V.K. Bist
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/B) No. 158 of 2017
Pramod Benjwal. ........Petitioner
Versus
State of Uttarakhand & others. .......Respondents
Mr. Atul Bahuguna and Mrs. Anjali Benjwal, Advocates for the petitioner.
Mr. Pradeep Joshi, Standing Counsel for the State of Uttarakhand/respondent no. 1.
Mr. B.D. Kandpal, Advocate for respondent no. 2.
Mr. B.D. Upadhyaya, Senior Advocate, assisted by Mr. Sunil Upadhyaya and Mr.
Naveen Tewari, Advocates for respondent no. 3.
Dated: 6th November, 2017
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble V.K. Bist, J.
K.M. Joseph, C.J. (Oral) Petitioner has approached this Court seeking the following reliefs:
"a) Issue a writ order or direction in the nature of Certiorari quashing the result/final select list dated 27.12.2016 issued by respondent no. 2 of the post of Principal Grade-II in the department of Training and Technical Education Uttarakhand, to the extent it includes the name of respondent no. 3 in illegal manner in the final selection list under general category.
b) Issue a writ order or direction in the nature of mandamus directing the respondents to include the name of the petitioner in the final selection list for the post of Principal Grade-II in the department of Training and Technical Education Uttarakhand under general category as the petitioner was in merit list of general category at serial no. 8 out of 12 seats."2
2. The Uttarakhand Public Service Commission issued an advertisement on 03.02.2015, inviting applications for various posts, including the post of Principal Grade-II in the Department of Training & Technical Education, Uttarakhand. There were 18 posts of Principal Grade-II, out of which, 12 were for General Category, 3 were reserved for Scheduled Caste and 3 were reserved for Other Backward Class. A Screening Examination was held. According to the petitioner, he was a General Category candidate. In the Screening Test, the cut off marks with regard to the General Category candidates was fixed at 88.75. Petitioner secured 91 marks. In regard to the Scheduled Caste Category, the cut off marks was fixed at 71.75. The third respondent, who belongs to Scheduled Caste community, secured 82.50 marks in the Screening Test. In the interview, which was held, the petitioner, the third respondent and another person secured 60 marks. The petitioner was not selected; instead, the third respondent was selected as against the general vacancy. One out of the three, who secured 60 marks in the interview, is not made party in the writ petition and he was accommodated against the vacancy for the Ex-serviceman, as he belongs to the said category. It is in such circumstances that the complaint is raised in the writ petition.
3. We heard Mr. Atul Bahuguna and Mrs. Anjali Benjwal, learned counsel appearing for the petitioner, Mr. Pradeep Joshi, learned Standing Counsel for the State of Uttarakhand, Mr. B.D. 3 Kandpal, learned counsel appearing for the Uttarakhand Public Service Commission, Mr. B.D. Upadhyaya, learned Senior Counsel, assisted by Mr. Sunil Upadhyaya and Mr. Naveen Tewari, Advocates appearing for respondent no. 3.
4. Mr. Atul Bahuguna, learned counsel appearing for the petitioner would complain that the selection of the third respondent is unwarranted in law. Relying upon the fact that he secured 91 marks in the Screening Test, according to him, it was the petitioner, who ought to have been selected in place of third respondent. He points out that the third respondent is a Scheduled Caste Category candidate and admittedly he did not secure the cut off marks fixed for the General Category candidates and, then, he posed a question, as to how he could be considered for the vacancy earmarked for the General Category. In this connection, he would draw our attention to the unreported judgment of the Hon'ble Apex Court passed in the matter of Deepa E.V. Vs. Union of India & others, being Civil Appeal No. 3609 of 2017. More about it will follow in our judgment. He also drew our attention to the judgment of the Hon'ble Apex Court, which was, in fact, referred to in the said judgment. He adverts to paragraph no. 65 of the said judgment, which reads as follows:
"65. In any event the entire issue in the present appeals need not be decided on the general principles of law laid down in various judgments as noticed above. In these matters, we are concerned 4 with the interpretation of the 1994 Act, the Instructions dated 25.3.1994 and the G.O. dated 26.2.1999. The controversy herein centres around the limited issue as to whether an OBC who has applied exercising his option as a reserved category candidate, thus becoming eligible to be considered against a reserved vacancy, can also be considered against an unreserved vacancy if he/she secures more marks than the last candidate in the general category."
5. Next, he would, in fact, complain that the Commission has not followed the Procedure Rules. He makes available a translation of the Uttarakhand Service Commission Exam Procedure Rules, 2012, which reads as under:
"Uttarakhand Service Commission Exam Procedure rule 2012
6.6. Essential qualification for post in service rules there is a mention of essential qualification. Those candidates which acquire essential qualification will be given preference in the case of same merit, i.e. will be kept on the first place in the order of best if two or more candidates acquired essential qualification, prescribed procedure will be followed in case of direct recruitment (by written and interview mode) and (only written mode) and direct recruitment (only in interview mode) while preparing the final selection result, if two or more than two candidates have obtained equal marks, than to put them in order of proficiency/merit following procedure will be followed.
51. First of all, in case of direct recruitment (by written/competitive exam and direct recruitment (only interview mode, while preparing final selection result, the provision whatsoever in the service rules are to be followed.
2. Where there are no specific provisions mention in the service Rule then in that case A- Direct recruitment (written and interview) if while addition of both the marks two or more than two candidates have obtained equal marks then i. The candidate which have obtained more marks in written examination will be kept above in the proficiency wise. If there are equal marks in written examination, then candidates ii. the candidate who is elder in age will be kept above in the order of proficiency, if the age of two is also same, then the candidate whose name is above in the Alphabetic order will be kept above.
B- Direct recruitment only written examination mode."
6. With reference to Rule 6.6(1), he would submit that the Rule Maker has declared that the provisions, whatsoever in the Service Rules, are to be followed. In this context, he drew our attention to the relevant provisions in the Service Rules. It is contained in Rule 15 of the Uttar Pradesh State Training (Labour 6 Department) Service Rules, 1981. The translation of the same reads as follows:
"Rule 15:- Procedure for direct
recruitment:-
1. for selection, under consideration application will be invited by the commission through terms, which can be obtained from Secretary of Commission.
2. As per rule 6 of the commission, the commission will call SC/ST or other category insuring the enough representation, will call such number of candidates for interview, which they deem fit and those who keep expected/qualification requisite.
3. Commission will prepare a list of candidates in the order of their proficiency, as appeared/revealed from the marks obtained by them in the interview. If two or more than two candidates obtained same marks, then commission will be take their names for services in order of merit on the basis of general suitability."
7. On a combined reading of these Rules, his contention is that if two or more candidates obtain same marks, the Commission will take their names for service in the order of merit on the basis of general suitability. He would, therefore, submit that general suitability is to be understood as the suitability not with reference to the age; but, with reference to the facts of this case and the setting of Rules, the marks, which is obtained in the Screening Test. Admittedly, petitioner secured higher marks than the respondent 7 no. 3. Therefore, on a combined reading of the Rules and in the context of the facts, the petitioner ought to have been selected as being more suitable even under the Service Rules and as per the Rules framed even by the Commission.
8. Per contra, learned counsel for the respondent-Commission, Mr. B.D. Kandpal points out that the terms of the advertisement are clear and unambiguous. He draws our attention to Clause 16 of the advertisement contained in Annexure No.1. Clause 16 of the advertisement reads as follows:
"¼16½ LØhfuax ijh{kk ¼;fn vk;ksftr gksrh gS rks½ esa izkIr vadksa ds vk/kkj ij fjDr inksa dh la[;k lkis{k fu;ekuqlkj vH;fFkZ;ksa dks lk{kkRdkj gsrq lQy ?kksf"kr fd;k tk;sxkA LØhfuax ijh{kk ds vad] vafre p;u ifj.kke esa lk{kkRdkj ds vadksa ds lkFk ugha tksM+s tk;saxs rFkk vafre p;u ifj.kke ek= lk{kkRdkj esa izkIr vadksa ds vkk/kj ij fu;ekuqlkj ¼vkj{k.k vkfn dk ykHk nsrs gq,½ ?kksf"kr fd;k tk;sxkA LØhfuax ijh{kk@ lk{kkRdkj dk ifj.kke vk;ksx dh osclkbV ij izfnf'kZr djk;k tk;sxk] ftldh lwpuk fofHkUu lekpkj i=ksa ds ek/;e ls izdkf'kr djk;h tk;sxhA""
9. Therefore, he would submit that screening is only for the purpose of determining the number of persons to be called for the interview. Once the stage of interview arrives and the marks in the interview are out, that will constitute the sole criteria for preparing the merit list. In fact, he would emphasize that the condition stipulated that the marks obtained in the screening test will not be added to the marks obtained in the interview for the purpose of determining merit. As far as the Service Rules are concerned, he would 8 submit that, in the light of the framing of the Exam Procedure Rules of 2012 by the Commission, which he reminds us are statutory in nature, having been framed under the Uttar Pradesh State Public Service Commission (Regulation of Procedure) Act 1985, the suitability is to be determined on the basis of the age in cases, where candidates obtain same marks. He would also submit that merely because the third respondent, member of the Scheduled Caste Community, did not obtain the cut off marks fixed for the General Category candidates, that would not disable the Reserved Category from vying for being selected in the vacancy reserved for the general candidates. If there is a tussle between members of the General Category and Reserved Category, in respect of General Category vacancies, the matter will be determined by merit and in view of the fact that both obtained similar marks, the matter is to be decided with reference to the Rules, which the Commission itself purports to follow.
10. Mr. B.D. Upadhyay, learned Senior Counsel appearing for the party respondent also supports the contentions of the learned counsel for the Commission.
11. Learned counsel appearing for the Commission, in fact, drew our attention to the actual Rule, which governs the case at hand, as this is a case, where selection is to be made on the basis of the performance in the interview. We advert to the following portion of the Rule, which has not been made available to us by the petitioner and it reads as follows:
9"a) When two and more candidates scored equal marks then the candidates who possessed the preferential qualification will be kept higher in merit list, however, when 2 or more candidates possessed equal marks and also possessed the equal preferential qualification also prescribed rules 6.6 of Result Preparation Procedure Rules, 2012 will be applied.
b) That in such a situation where the recruitment is to be done by way of interview only the procedure prescribed in rules 6.6 (C) (I and II) will applied which provides that if two or more candidates secure equal marks in interview and possessed preferential qualification then the candidates older in age will be kept higher in merit list and in case two or more candidates also have the same age then the merit list will be arranged in accordance to English alphabetical order."
12. There is no challenge to the advertisement. The petitioner has participated in the selection process. Therefore, he cannot also be permitted to turn around and challenge the advertisement clauses. But, in this case, we need not even go so far, as there is no challenge to the advertisement. Therefore, we have to take the terms of the advertisement as it is. In the advertisement, as we have already noticed, the criterion for selection is merit, as determined by the performance in the interview. The marks obtained by a person in the Screening Test are irrelevant for the purpose of determining merit for the purpose of selection. It is apparently being held for the purpose of 10 determining the number of persons to be called for the interview, for the purpose of which, the Commission has also devised a mechanism of cut off marks. Since selection is to take place for different categories of candidates, namely, General, Scheduled Caste & Other Backward Class, they have separate cut off marks. It is so done, according to the Commission, so as to enable proper representation for the communities for their being considered at the stage of interview in sufficient numbers. Also, the terms of the advertisement are clear that the marks obtained in the Screening Text cannot be added to the marks obtained in the interview. Therefore, we have to take it that the merit is determined on the basis of the marks obtained in the interview.
13. In this case, as we have noticed, three persons secured equal marks. One, out of the three, as we have noticed, was selected in the Ex-servicemen Category. His selection is not questioned and he is not made a party and we need not say anything further in regard to his selection.
14. We are called upon only to decide the tussle between the petitioner and the third respondent. Petitioner belongs to the General Category and the third respondent belongs to the Scheduled Caste Category. The first question, we must pose and answer is, whether because the third respondent, who is a member of the Schedule Caste Community, did not secure the cut off marks for the General Category 11 vacancy, could he be selected against the General Category vacancy?
15. In this regard, we may straight away notice the judgment, which is relied on by the learned counsel for the petitioner Mr. Atul Bahuguna. The facts must be noticed as follows:
The appellant therein belongs to Dheevara community which is one of the "Other Backward Classes". She got age relaxation, as was granted to O.B.C. category candidates. She secured 82 marks. One, Ms. Sarena Joseph (O.B.C.), secured 93 marks and she was selected and appointed. She filed a writ petition claiming that she was entitled to be accommodated in the General Category. The Court noticed that, insofar as the General Category is concerned, no candidate had secured the cut off marks, namely, 70 marks. The recruitment in the said case was governed by the two instruments; one was Rule 9, which reads as follows:
"9. Saving:
Nothing in these rules affect reservations, relaxation of age limit and other concessions required to be provided for the Scheduled Caste, Scheduled Tribes and other special categories of persons in accordance with the orders issued by the Central Government from time to time in this regard."12
The other was a G.O. and O.M. We need not be detained by the entire terms of the said G.O. except the following:
"an SC/ST/OBC candidates, for example in the age-limit, experience, qualification, permitted number of chances in written examination, extended zone of consideration larger than what is provided for general category candidates, etc., the SC/ST/OBC candidates are to be counted against reserved vacancies. Such candidates would be deemed as unavailable for consideration against unreserved vacancies."
16. The attempt made by the appellant to draw support from the judgment of the Hon'ble Apex Court, in the matter of Jitendra Kumar Singh & another Vs. State of Uttar Pradesh and others, reported in (2010) 3 SCC 119 did not meet the approval of the Court and the Court proceeded to distinguish the earlier judgment of the Hon'ble Apex Court on the basis of the following reasoning:
"10. Having regard to the observations in paragraphs 65 and 72, in our view, the principles laid down in Jitendra Kumar Singh (supra) cannot be applied to the case in hand. As rightly pointed out by the High Court that judgment in Jitendra Kumar Singh (supra) was based on the statutory interpretation of the U.P. Act, 1994 and Government order dated 25.3.1994 which provides for entirely a different scheme."
17. Therefore, we must hold necessarily that the said judgment turned on its own facts which include 13 the specific statutory Rules and the Government Order in question. The Government Order, in question, in short, declared that when a relaxed standard is applied in selecting Scheduled Caste, Scheduled Tribe and Other Backward Class candidates, for example in the age limit, experience, qualification, permitted number of chances in written examination, extended zone of consideration larger than what is provided for General Category candidates etc., the reserved categories are to be counted against the reserved vacancies. Such candidates, it was further declared, would be deemed as unavailable for the consideration against the unreserved vacancies. As far as this G.O. is concerned, we must necessarily observe that there is no similar prohibition, which is brought to our notice, either in the Rules of the Department or in the Advertisement or in the Rules framed by the Public Service Commission.
Now, we must notice the judgment of Hon'ble Apex Court in the matter of Jitendra Kumar Singh & another Vs. State of Uttar Pradesh and others, reported in (2010) 3 SCC 119. The said case involved the following facts:
The respondent State conducted a competitive examination for filling up the posts of Sub Inspectors of Civil Police and Platoon Commanders in P.A.C. by direct recruitment. Candidates belonging to SCs, STs and OBCs were granted waiver of examination fee and also relaxation in upper age limit, as provided in the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes 14 and Other Backward Classes) Act, 1994. Section 3(6) of the Act provided that if a reserved candidate gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for the unreserved category. The question, therefore, which fell for decision by the Hon'ble Apex Court was, whether the advantages, which were made available to the reserved categories candidates by way of a lesser fee and age relaxation, would take away the benefit, which was available to the candidates belonging to the reserved categories. The Court, inter alia, held as follows:
"46. It is not disputed before us that the standard of selection in the preliminary written test and the physical test was common to all the candidates. In other words, the standard was not lowered in case of the candidates belonging to the reserved category. The preliminary written test and the physical test were in the nature of qualifying examinations to appear in the main written test. The marks obtained in the preliminary written examination and the physical test were not to be included for determination of final merit. It was only candidates who qualified in the preliminary written test and the physical test that became eligible to appear in the main written test which consisted of 600 marks. As noticed earlier, this had two papers- general Hindi, general knowledge and mental aptitude test. A candidate who secured 40% or above would be declared successful in the written test. Thereafter, the candidates were to appear for interview of 75 marks. The final merit list would be prepared on the basis of merit secured in the main 15 written test and the interview. The candidates appearing in the merit list, so prepared, would be declared selected.
65. In any event the entire issue in the present appeals need not be decided on the general principles of law laid down in various judgments as noticed above. In these matters, we are concerned with the interpretation of the 1994 Act, the Instructions dated 25.3.1994 and the G.O. dated 26.2.1999. The controversy herein centres around the limited issue as to whether an OBC who has applied exercising his option as a reserved category candidate, thus becoming eligible to be considered against a reserved vacancy, can also be considered against an unreserved vacancy if he/she secures more marks than the last candidate in the general category."
18. Learned counsel appearing for the Commission drew our attention to paragraph no. 72 of the aforesaid judgment, which reads as follows:
"72. Soon after the enforcement of the 1994 Act the Government issued instructions dated 25.3.1994 on the subject of reservation for Scheduled Castes, Scheduled Tribes and other backward groups in the Uttar Pradesh Public Services. These instructions, inter alia, provide as under:-
"4. If any person belonging to reserved categories is selected on the basis of merits in open competition along with general category candidates, then he will not be adjusted towards reserved category, that is, he shall be deemed to have been adjusted 16 against the unreserved vacancies. It shall be immaterial that he has availed any facility or relaxation (like relaxation in age-limit) available to reserved category."
From the above it becomes quite apparent that the relaxation in age- limit is merely to enable the reserved category candidate to compete with the general category candidate, all other things being equal. The State has not treated the relaxation in age and fee as relaxation in the standard for selection, based on the merit of the candidate in the selection test i.e. Main Written Test followed by Interview. Therefore, such relaxations cannot deprive a reserved category candidate of the right to be considered as a general category candidate on the basis of merit in the competitive examination. Sub-section (2) of Section 8 further provides that government orders in force on the commencement of the Act in respect of the concessions and relaxations including relaxation in upper age-limit which are not inconsistent with the Act continue to be applicable till they are modified or revoked."
19. Therefore, the attempt made by Mr. Atul Bahuguna, learned counsel appearing for the petitioner to draw support from this judgment by contending that this is not a case where the third respondent secured higher marks than the petitioner and, therefore, the principle of the said judgment cannot be made applicable, may not advance the case of the petitioner.
20. In order to appreciate this contention based on paragraph no. 65 of the aforesaid judgment, we would have to pose ourselves a question. Had the third 17 respondent secured higher marks in the interview, would that disable him from vying for being selected against the open vacancy? We have already noticed that, under the Advertisement, the marks obtained in the Screening Test will not count for determining the merit. Thereafter, once the interview is held, there appears to be a level playing field, which would mean that a candidate belonging to a reserved category would be in a position to compete in regard to the vacancies available for the open competition candidates and also for particular reserved category to which he belongs. If for instance, the third respondent secured higher marks, can it be said that the higher marks, which he obtained in the interview, would not entitle him to be considered for selection as against the open merit vacancies vis-à-vis the petitioner, who gets lower marks. Certainly, the third respondent can be considered on the basis of his performance in the interview. This is despite the fact that he did not secure the cut off marks for being considered, as such, against the open category vacancy for which he is subsequently found to be more meritorious having regard to the sole criteria, as fixed in the advertisement for being considered. This is a conclusion, which is inescapable in terms of the advertisement. In other words, since the purport of cut off marks is essentially to fix a number of candidates to be called for the interview and to allow for fair competition, once the candidate belonging to the reserved category is entitled to be called for the interview by virtue of his securing the cut off marks, which he may have obtained for the 18 reserved category and though having failed to secure the cut off marks for the O.C. category, once the interview is held, actual selection will be predicated on the basis of the performance in the interview. As already noticed, had the third respondent secured higher marks, there would, in fact, be no controversy at all except for the controversy relating to the question, whether he is entitled for being considered for the O.C. category. Therefore, we would think that once selection is predicated on the basis of the performance in the interview and in a case where the third respondent secured higher marks, he would be entitled to be considered for the O.C. category vacancy, then the fact that he has secured same marks as the candidate belonging to the O.C. category would then set in motion the relevant statutory Rules for determining, who will be selected from out of the two and this is precisely what has been done by the Commission.
21. The Commission has clearly acted strictly as per the Rules which are framed. The Commission has also acted on the terms of the advertisement that it will go by the marks obtained in the interview. The Commission has acted in conformity with the specific Rules, which provide that in a case of selection by interview only, then should the candidates obtain similar marks and there being no preferential qualification or candidates with preferential qualification obtaining similar marks, then selection would be premised on the age of the candidate, the 19 older being selected. Admittedly, the third respondent is older than the petitioner and, therefore, he was selected.
22. In regard to the contention, which the petitioner advances in regard to the Rules made by the Appointing Authority, namely, that if two candidates obtain similar marks, matter should be determined with reference to the general suitability, we would think that in a selection by the Public Service Commission, ordinarily, the Court would defer to the selection procedure. No doubt, illegality or malafides would constitute exceptions. Apparently, it is on the basis of the Service Rules, which provides for determining the right to be selected on the basis of the suitability in case candidates secure similar marks that the Commission has devised the statutory Rules, which categorically provides that in a case of selection by interview, where same marks are obtained, age will determine the right to be selected. We may notice incidentally also that in the Rules made by the Commission though in Clause 6.6(1) the matter is to be governed by the Service Rules even 'only' in the interview mode, when it comes to the actual provision relating to the selection to be made by interview, the things are as provided therein and which we have extracted, namely, the age becomes the determining factor.
2023. There is no challenge, we reiterate either to the terms of the advertisement or to the Rules made by the Commission which provides for age.
24. In such circumstances, we are of the view that the selection of the third respondent cannot be found to be flawed. The writ petition fails and is dismissed without any order as to costs.
(V.K. Bist, J.) (K.M. Joseph, C.J.) 06.11.2017 Arpan