Allahabad High Court
Sangeeta And 77 Others vs State Of U.P. And 4 Others on 11 December, 2018
Equivalent citations: AIRONLINE 2018 ALL 5300
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 6 Case :- WRIT - A No. - 20016 of 2018 Petitioner :- Sangeeta And 77 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Siddharth Khare,Ashok Khare, Sr. Advocate Counsel for Respondent :- C.S.C.,M.N. Singh With Case :- WRIT - A No. - 19407 of 2018 Petitioner :- Priyanka Patel Respondent :- State Of U.P. And Another Counsel for Petitioner :- Tarun Agrawal Counsel for Respondent :- C.S.C.,M.N. Singh With Case :- WRIT - A No. - 19454 of 2018 Petitioner :- Jyoti Sharma And 5 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Santosh Yadav,Santosh Kumar Tiwari Counsel for Respondent :- C.S.C.,M.N. Singh With Case :- WRIT - A No. - 19803 of 2018 Petitioner :- Punita Rai And 11 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Sanjay Kumar Om Counsel for Respondent :- C.S.C.,M.N. Singh With Case :- WRIT - A No. - 20062 of 2018 Petitioner :- Ruchi Kumari And 124 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Shantanu Khare,Ashok Khare, Sr. Advocate Counsel for Respondent :- C.S.C.,M.N. Singh With Case :- WRIT - A No. - 20081 of 2018 Petitioner :- Poonam Kumari Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Om Prakash Mishra Counsel for Respondent :- C.S.C.,M.N. Singh With Case :- WRIT - A No. - 20114 of 2018 Petitioner :- Priya Singh And 63 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Shantanu Khare,Ashok Khare, Sr.Advocate Counsel for Respondent :- C.S.C.,M.N. Singh With Case :- WRIT - A No. - 20322 of 2018 Petitioner :- Smt. Savita Devi Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Hans Pratap Singh Counsel for Respondent :- C.S.C.,M.N. Singh With Case :- WRIT - A No. - 20442 of 2018 Petitioner :- Sangeeta Respondent :- State Of U.P. And Another Counsel for Petitioner :- Gauri Shankar Yadav,Imran Syed Counsel for Respondent :- C.S.C.,M.N. Singh With Case :- WRIT - A No. - 20449 of 2018 Petitioner :- Smt. Sadhna And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Birendra Singh Counsel for Respondent :- C.S.C.,Hemendra Kumar Mishra,M.N. Singh With Case :- WRIT - A No. - 20794 of 2018 Petitioner :- Mausam Singh And 114 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Anubhav Chandra,Arun Kumar Counsel for Respondent :- C.S.C.,M.N. Singh With Case :- WRIT - A No. - 20820 of 2018 Petitioner :- Sushma Dixit And 112 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Siddharth Khare,Ashok Khare, Sr. Advocate,Shantanu Khare Counsel for Respondent :- C.S.C.,M.N. Singh With Case :- WRIT - A No. - 20882 of 2018 Petitioner :- Deepa Yadav And 8 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Yogesh Kumar Tripathi Counsel for Respondent :- C.S.C. With Case :- WRIT - A No. - 21010 of 2018 Petitioner :- Sonvati Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Sarvajeet Singh Counsel for Respondent :- C.S.C. With Case :- WRIT - A No. - 21215 of 2018 Petitioner :- Kusum Lata Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Ashok Kumar Counsel for Respondent :- C.S.C.,M.N. Singh With Case :- WRIT - A No. - 21348 of 2018 Petitioner :- Smt. Punita Pandey And 3 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Jitendra Rpasad Kushwaha,Shailendra Kumar Tiwari Counsel for Respondent :- C.S.C.,M.N. Singh With Case :- WRIT - A No. - 21400 of 2018 Petitioner :- Indrajeet Kaur And 10 Others Respondent :- State Of U P And Another Counsel for Petitioner :- Jitendra Kumar Tripathi Counsel for Respondent :- C.S.C.,M.N. Singh With Case :- WRIT - A No. - 21415 of 2018 Petitioner :- Tarannum Mehdi Pasha And 33 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Siddharth Khare,Ashok Khare, Sr. Advocate Counsel for Respondent :- C.S.C.,M.N. Singh With Case :- WRIT - A No. - 21419 of 2018 Petitioner :- Smt. Kanchan Lata Rai Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Birendra Singh,Pradeepta Kumar Shahi Counsel for Respondent :- C.S.C.,Hemendra Kumar Mishra,M.N. Singh With Case :- WRIT - A No. - 21523 of 2018 Petitioner :- Seema Pal And 13 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Siddharth Khare,Shri Ashok Khare, (Senior Advocate) Counsel for Respondent :- C.S.C.,M.N. Singh With Case :- WRIT - A No. - 21584 of 2018 Petitioner :- Anita Vind Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Rajendra Kumar Yadav Counsel for Respondent :- C.S.C.,M.N. Singh With Case :- WRIT - A No. - 21619 of 2018 Petitioner :- Km. Manju Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Vijay Gautam,Ambarish Chatterji Counsel for Respondent :- C.S.C.,M.N. Singh With Case :- WRIT - A No. - 21691 of 2018 Petitioner :- Sanju Chaurasiya Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Ashish Kumar Srivastava,Ajay Kumar Rai Counsel for Respondent :- C.S.C.,M.N. Singh With Case :- WRIT - A No. - 22233 of 2018 Petitioner :- Ranjana Patel Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Brajesh Shukla Counsel for Respondent :- C.S.C.,M.N. Singh With Case :- WRIT - A No. - 22254 of 2018 Petitioner :- Kiran Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Santosh Kumar Shukla Counsel for Respondent :- C.S.C.,M.N. Singh With Case :- WRIT - A No. - 22398 of 2018 Petitioner :- Shabnam Rai Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Munna Yadav Counsel for Respondent :- C.S.C.,M.N. Singh With Case :- WRIT - A No. - 22417 of 2018 Petitioner :- Geeta Maurya And 6 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Vinod Shankar Tripathi,Suraj Kumar Singh Counsel for Respondent :- C.S.C.,M.N. Singh With Case :- WRIT - A No. - 23184 of 2018 Petitioner :- Smt. Babita Kushwaha And 4 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Shailendra Kumar Tiwari,Jitendra Rpasad Kushwaha Counsel for Respondent :- C.S.C.,M.N. Singh With Case :- WRIT - A No. - 23559 of 2018 Petitioner :- Kiran Devi And 5 Others Respondent :- State Of U P And 4 Others Counsel for Petitioner :- Jitdendra Kumar Shukla Counsel for Respondent :- C.S.C.,M.N. Singh With Case :- WRIT - A No. - 23665 of 2018 Petitioner :- Sadhana Mishra And 91 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Anubhav Chandra,Arun Kumar Counsel for Respondent :- C.S.C.,M.N. Singh With Case :- WRIT - A No. - 24866 of 2018 Petitioner :- Sunita Singh And 4 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Jitdendra Kumar Shukla Counsel for Respondent :- C.S.C.,M.N. Singh Hon'ble Yashwant Varma,J.
Leave to correct the date as mentioned in relief No.1 is granted. Necessary correction be carried out forthwith. These writ petitions which raise common questions of law were, with the consent of parties, taken up for final disposal together.
This batch of writ petitions impugn a notification dated 01 September 2018 issued by the U.P. Public Service Commission ["the Commission"]. A further relief is sought for declaration of revised results ignoring the minimum qualifying marks of 40% and 30% as stipulated by the Commission. By way of an amendment a further writ is sought impugning the decisions of the Commission dated 24 December 1966 and 05 February 2011. Although the petitioners additionally sought the relief of their absorption in service by virtue of long service rendered, this relief, as noted in the order of this Court dated 6 December 2018, was given up and a prayer for its deletion accepted subject to liberty being reserved to the petitioners to raise the same in independent proceedings The issue itself emanates from a selection process initiated by the Commission for recruitment of suitable candidates on the post of Staff Nurse (Male/Female). The recruitment to these posts is admittedly governed by the provisions of the Uttar Pradesh Subordinate Nursing (Non Gazetted) Service Rules 19791 as amended by the Fourth Amendment to those Rules which were notified on 11 February 2016. The challenge essentially was to the notification of the Commission dated 01 September 2018, which proceeds to disclose the following facts.
The Commission states that pursuant to the recruitment notice issued, 23,394 candidates had applied. It also refers to the fact that after due scrutiny, 20408 applicants were ultimately found entitled to participate in the selection process. It further discloses that for the "Medical and Health Services" of the State, against the total number of 3628 posts, 1830 candidates have been provisionally selected. According to the Commission, with respect to the "Medical Education and Training Services" against the total number of 753 posts, a total number of 558 candidates had been provisionally selected. In paragraph-2 of the impugned notification, the Commission states that it had fixed the minimum marks at 40% for the General and OBC categories and 30% for SC and ST categories. It further clarified that only those candidates would be recommended who had obtained the minimum marks in the aggregate as prescribed and noted above. The recruitment process contemplated the suitability of candidates being assessed on the basis of a written examination and another compartment comprising marks being awarded for experience.
When this petition was initially entertained, one of the submissions which was noted by a learned Judge in the order dated 08 September 2018 was that neither the advertisement nor the Rules contemplated the prescription of minimum marks and consequently the non recommendation of a large number of candidates in the face of available vacancies was arbitrary. The Commission was consequently required to file a response in these proceedings.
In the counter affidavit which was filed by the Commission on 22 September 2018 it was pointed out that the petitioners herein had failed to obtain the minimum qualifying marks as prescribed by the Commission in terms of its impugned notification dated 01 September 2018 and that consequently their names were not recommended. The Commission additionally referred to its resolution of 24 December 1966 to contend that its action of prescribing minimum qualifying marks was referable to this decision. Thereafter a supplementary counter affidavit was filed by the Commission on 22 October 2018 bringing on record its decision of 24 December 1966 as well as a Government Order dated 30 September 1966. The Government Order of 30 September 1966 is essentially what prompted the Commission to stipulate minimum qualifying marks to be obtained by candidates in recruitment exercises undertaken by it and which entailed the assessment of candidates by way of a written test and interview. The decision was avowedly taken in order to maintain a minimum standard and in the interest of efficiency of administration. Yet another affidavit was filed thereafter by the Commission on 27 October 2018 principally to explain the contents of paragraph-11 of the original counter affidavit by clarifying that the minimum qualifying cut off marks had been fixed with reference to the aggregate marks secured in the written examination as well as the marks awarded as weightage for past contractual service, both clubbed together.
The State, it is relevant to note, has neither filed any affidavit in these proceedings nor has it chosen to advance any submissions in this batch although this matter was heard over the course of three days.
Sri Khare, learned Senior Counsel leading the submissions on behalf of the petitioners has principally addressed the following submissions:
a) It is contended that the impugned decision of the Commission to prescribe a minimum percentage as qualifying marks cannot be sustained being contrary to the Rules of recruitment, which apply.
b) Sri Khare highlighted the fact that neither the advertisement nor the 1979 Rules, which govern the recruitment, envisage or prescribe any minimum qualifying marks.
c) Shri Khare submitted that where statutory rules were invoked and governed recruitment, it was not open for the Commission to frame its own principles of eligibility and suitability.
d) Sri Khare elaborating on this submission drew the attention of the Court to Rule 15 as introduced by way of the Fourth Amendment to the 1979 Rules to submit that a detailed procedure for computation of results and preparation of merit stood prescribed. According to Sri Khare since Rule 15 did not envisage any minimum marks in the aggregate being obtained by a candidate, it was wholly impermissible for the Commission to have introduced such a provision by way of its impugned notification dated 1 September 2018.
e) Turning to the decision of the Commission of 24 December 1966, Sri Khare submitted that this decision can have no application once the 1979 Rules came to be promulgated by virtue of the powers conferred by the proviso to Article 309 of the Constitution. According to Sri Khare once specific rules of recruitment came to be framed, the decision of the Commission of 1966 would clearly pale into insignificance.
f) Sri Khare has also assailed the validity of the 1966 resolution by stating that it was wholly vague and in any view of the matter could have no application to the recruitment exercise in question. This submission was addressed in the backdrop of Rule 15 contemplating the merit of a candidate being assessed on the basis of a written examination and marks being awarded for experience. Sri Khare submitted that the 1966 decision stood confined to those recruitments where merit was to be assessed on the basis of a written examination and interview alone. In view thereof it was contended that the 1966 decision would clearly have no application even otherwise in the facts of the case.
Noticing these submissions, this Court by its order of 10 December 2018 had called upon Sri G.K. Singh, learned Senior Counsel appearing for the Commission, to obtain specific instructions and apprise the Court whether the Commission had at any stage "adapted" the 1966 resolution so as to make it compatible with the exercise of recruitment as envisaged under the 1979 Rules as amended. Today when the matter was taken up Sri Singh stated, on instructions, that no decision was taken by the Commission to adapt the 1966 resolution so as to apply to a case where merit was to be formulated on the basis of marks obtained in the written examination along with the marks to be awarded as weightage for experience gathered.
Reverting to the submissions of Sri Khare, the Court notes that principal reliance was placed on a decision of the Supreme Court in Dr. Krushna Chandra Sahu Vs. State of Orissa2 and more fundamentally on paragraphs 31, 32, 33 and 35 of the report which read thus: -
"31. Now, power to make rules regulating the conditions of service of persons appointed on Government posts is available to the Governor of the State under the Proviso to Article 309 and it was in exercise of this power that the present rules were made. If the statutory rules, in a given case, have not been made, either by the Parliament or the State Legislature, or, for that matter, by the Governor of the State, it would be open to the appropriate Government (the Central Government under Article 73 and the State Government under Article 162) to issue executive instructions. However, if the rules have been made but they are silent on any subject or point in issue, the omission can be supplied and the rules can be supplemented by executive instructions. (See "Sant Ram Sharma v. State of Rajasthan, :(1967) SC 1910.
32. In the instant case, the Government did neither issue any administrative instruction nor did it supply the omission with regard to the criteria on the basis of which suitability of the candidates was to be determined. The members of the Selection Board, of their own, decided to adopt the confidential character rolls of the candidates who were already employed as Homoeopathic Medical Officers, as the basis for determining their suitability.
33. The members of the Selection Board or for that matter, any other Selection Committee, do not have the jurisdiction to lay down the criteria for selection unless they are authorised specifically in that regard by the rules made under Article 309. It is basically the function of the rule-making authority to provide the basis for selection. This Court in State of Andhra Pradesh and Anr. v. V. Sadanandam and Ors. : [1989] Supp. (1) SCC 574 , observed as under : (SCC pp. 583-84, para 17) We are now only left with the reasoning of the Tribunal that there is no justification for the continuance of the old rule and for personnel belonging to other zones being transferred on promotion to offices in other zones. In drawing such conclusion, the Tribunal has travelled beyond the limits of its jurisdiction. We need only point out that the mode of recruitment and the category from which the recruitment to a service should be made are all matters which are exclusively within the domain of the executive. It is not for judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment of the categories from which the recruitment should be made as they are matters of policy decision falling exclusively within the purview of the executive. (Emphasis supplied)
35. Similarly, in Umesh Chandra Shukla Etc. v. Union of India and Ors. :[1985] 3 SCC 721, it was observed that the Selection Committee does not possess any inherent power to lay down its own standards in addition to what is prescribed under the Rules. Both these decisions were followed in Durgacharan Misra v. State of Orissa and Ors.. (1987) 4 SCC 646 and the limitation of the Selection Committee were pointed out that it had no jurisdiction to prescribe the minimum marks which a candidate had to secure at the viva-voce."
The submission was that it was not for the Commission to either evolve or prescribe standards, which were otherwise not mandated under the relevant recruitment rules. It was contended that the Commission or for that matter any selection committee has no "inherent power" to lay down or formulate its own standards in addition to what may be prescribed under the Rules.
Sri G.K. Singh learned Senior Counsel appearing for the Commission has laid stress essentially on Clause-6 of the Advertisement by submitting that the obligation of the Commission to select and identify "suitable candidates" clearly conferred on it the authority to prescribe the minimum marks to be obtained by all candidates in the aggregate. Sri Singh contended that the prescription of minimum marks to be obtained was necessary in order for the Commission to ensure the efficiencies of the service as well as the "suitability" of the selected candidates. It is further contended that the Commission had consistently applied the 1966 resolution to various recruitments conducted by it and that the said resolution had been upheld and the action of the Commission also conferred judicial approval in various judgments rendered by the Court. It is however pertinent to note here that Sri Singh, placed reliance and drew the attention of the Court to only one decision rendered by a learned Judge of this Court in this regard. The decision shall be noticed hereinafter.
Sri Singh submitted that the 1966 Resolution of the Commission itself flowed primarily from the decision of the State Government taken on 30 September 1966 and that as would be evident from a reading of these decisions it was so resolved and decided essentially to ensure that a minimum standard of fitness was achieved and the maintenance of efficiencies in administration secured. Sri Singh learned Senior Counsel has in support of his submissions placed reliance upon the following decisions: -
1. Sushil Kumar Srivastava and another Vs. U.P. Public Service Commission and another3
2. State of U.P. Vs. Rafiquddin and others4
3. Union of India And Others Vs. S. Viodh Kumar and Others5 and
4. K.H. Siraj Vs. High Court of Kerela and Others6 Before proceeding to deal with the rival submissions, it would be apposite to note the following. Undisputedly, the 1979 Rules were framed by the Governor in exercise of powers conferred by the proviso to Article 309 of the Constitution. The Preamble to the 1979 Rules read thus: -
"UP Gazette, Part I-A dated January 26 1980 HEALTH DEPARTMENT December 19, 1979 No. 4455/XVI-13-79-8 (15)-78.-- In exercise of the powers conferred by the proviso to Article 309 of the Constitution and in supersession of all existing rules and orders on the subject, the Governor is pleased to make the following rules regulating recruitment to posts in, and the conditions of service of persons appointed to the Uttar Pradesh Subordinate Nursing (Non-Gazetted) Service." (emphasis supplied) Rule 15 as introduced by way of the Fourth Amendment to the 1979 Rules and upon which the questions raised would merit consideration reads thus: -
"Procedure for direct recruitment-
15. (1) Applications for permission to appear in the Competitive Examination shall be invited by the Commission in the form published in the advertisement issued by the Commission.
(2) No Candidate shall be admitted to the Examination unless he holds a certificate of admission issued by the Commission.
(3) Selection shall carry one hundred marks. The merit list of the candidates shall be prepared in the following manner-
(a) Written Examination shall carry eighty five marks.
(b)Marks to a person who is working as Staff Nurse on contract basis in the Medical and Health Services Department, Uttar Pradesh shall be awarded in the following manner subject to the maximum of fifteen marks:-
(i)For the first completed year of service on contract basis----------- Three marks
(ii) For the next and every completed year of service on contract basis----------------- three marks for each year.
(1.c) The marks obtained by each candidate under clause (a) shall, where applicable, be added to the marks obtained under clause (b).
(4) 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, prepare a list of candidates in order of their prefeciency as disclosed by the marks obtained by them under clause (c) of sub-rule(3) and recommend such number of candidates as they consider fit for appointment. If two or more candidates obtain equal marks, the name of the candidate senior in age shall be placed higher in the list. The Commission shall forward the list to the appointing authority.
The decision of the Commission taken on 24 December 1966 reads as follows: -
"DISCUSSED on Dec. 23 The Commission agreed to the observations of the Government that a minimum standard of efficiency must be insisted upon from the Scheduled Caste candidates, which minimum standard should not be different for the general candidates. The Commission, therefore, decided to adopt this principle for future recruitment. The Commission also decided that the minimum limit may be different for different posts and that generally speaking it should not be less than 40% of marks that may be secured in the aggregate of marks secured at the interview and/or in written papers."
It is in the above backdrop that the Court now proceeds to deal with the rival submissions. Pausing here, it would be appropriate to notice certain basic and fundamental precepts upon which the rival submissions would be liable to be tested.
From a constitutional and historical perspective, the Commission owes it genesis to the avowed objective of our Founding Fathers to establish institutions independent and insulated charged with the obligation of selecting persons who would constitute the executive branch of Government. The Commissions at the level of the Union and the States were envisaged to be institutions which would conduct selections to various public posts free from all extraneous considerations and pressures, be manned by persons of irreproachable integrity and expertise in their respective fields. The Commission, viewed in this sense, is in the position of a constitutional trustee.
While its position of constitutional eminence can never be doubted, it must also be borne in mind that its powers and functions are explicitly provisioned for under the Constitution itself. Article 320 of the Constitution specifies the various functions that the Commission is empowered to discharge. This Article represents not just the source or the fountainhead of the powers that stand conferred and the functions that it may perform, it also encapsulates the limits of its powers. While the Commission may be consulted on various issues of policy concerning the executive branch of government, when it comes to selection and recruitment it is equally bound by the provisions made in the applicable statutes and rules. The power to assess "suitability" cannot be utilized for the Commission to abrogate unto itself the authority to either formulate or evolve its own conditions of eligibility beyond those prescribed under the applicable statute. Eligibility, as has been repeatedly held, is governed primarily by statute. The principle of selection that it undertakes must be guided by the provisions of the applicable recruitment rules. Acceptance of the submission of "suitability" as clothing the Commission with the authority or power to formulate its own conditions of eligibility or suitability would result in expanding its powers beyond what is prescribed by Article 320 of the Constitution.
The only caveat or exception to the above exposition would be the instances where the applicable statute itself confers such authority upon the Commission or where the statute by virtue of its silence with respect to the criteria for adjudging merit can be read so as to confer such authority and discretion in the Commission. The statute may in such cases either explicitly confer a power on the Commission to formulate the relevant norms or may even contemplate the employer framing the requisite norms independently.
As has been rightly contended by Sri Khare relying upon the decision in Dr. Krushna Chandra Sahu, it is not open for a selecting body like the Commission to either evolve or formulate its own standards in addition to what is prescribed under the statutory Rules. It was in that backdrop that the Supreme Court had proceeded to hold that the Selection Committee in Dr. Krushna Chandra Sahu had no authority or jurisdiction to prescribe minimum marks which a candidate must secure at the stage of the interview.
In an oft-quoted decision of the Supreme Court in Durgacharan Misra Vs. State of Orissa7, a similar question arose when the Supreme Court was called upon to test the validity of the action of the Commission which had prescribed minimum marks to be secured at the viva voce test. In the facts of that case the Supreme Court was faced with a situation where a sitting Judge of the High Court, who was a member of the interview Committee, had mandated the prescription of minimum marks to be secured by candidates at the viva voce test. The question, which essentially arose and fell for consideration was noted by the Supreme Court to be whether the Judge present at the viva voce test had the power to add anything to the Rules of recruitment. This question was answered by the Supreme Court as under: -
"The Rules have been framed under the proviso to Article 309 read with the Article 234 of the Constitution. Article 234 requires that the appointment of persons other than District Judge to the Judicial Service of State shall be made by the Governor of the State. It shall be in accordance with the Rules made by the Governor in that behalf after consultation with the State Service Commission and with the State High Court. The Rules in question have been made after consultation with the Commission and the State High Court. The Commission which has been constituted under the Rules must, therefore faithfully follow the Rules. It must select candidates in accordance with the Rules. It cannot prescribe additional requirements for selection either as to eligibility or as to suitability. The decision of the Commission to prescribe the minimum marks to be secured at the viva voce test would, therefore, be illegal and without authority."
K.H. Siraj Vs. High Court of Kerala8 is a decision on which strong reliance was placed by Sri G.K. Singh learned Senior Counsel in support of his submissions. However, this authority in the considered view of this Court does not carry the case of the Commission any further for the following reasons.
The validity of the power exercised by the Commission to prescribe or postulate minimum qualifying marks must fundamentally be tested on the anvil of the relevant statutory Rules. In the present, the question must necessarily be answered with reference to Rule 15. As is evident from a reading of Rule 15 it prescribes that the selection process would carry a total of 100 marks. These marks are thereafter bifurcated between the written examination and weightage for experience in the ratio of 85:15. Rule 15(3)(c) then prescribes that the marks obtained by each candidate in the written examination and those that may be awarded under the heard of experience are to be added. Rule 15(4) then mandates that a list of candidates in the order of their proficiency, as disclosed by the marks obtained by them under clause (c) of sub Rule (3), is to be drawn up and recommendations consequently framed.
Rule 15, therefore, essentially requires the Commission to quantify the marks obtained by each candidate in the written examination, add thereto any marks that are liable to be awarded under the head of experience and service rendered on contract basis and frame its list of suitable candidates based upon the total marks obtained by them in the aggregate. Rule 15, as is evident from the above exposition, neither specifically contemplates nor prescribes any minimum qualifying marks to be obtained by any candidate so as to be included in the list which is to be prepared under sub Rule (4). As this Court reads Rule 15 it also fails to find the existence of any space of silence within which the Commission could have validly prescribed the minimum qualifying marks as it has done in terms of the impugned notification dated 1 September 2018. The second aspect of equal significance which immediately springs into view upon a reading of Rule 15 is that it creates no room for the exercise of any "inherent power" by the selecting body to adjudge suitability.
In summation, the Court finds that Rule 15 lays in place a comprehensive and exhaustive mechanism governing recruitment to the service in question. It provides for the modes of evaluation, the various heads under which the eligibility and suitability of a prospective candidate is to be assessed, the bifurcation of marks between the written test, the weightage to be accorded in the field of experience and the preparation of the select list. More fundamentally, it mandates the preparation of a select list on the basis of the aggregate of the marks obtained by candidates under the aforementioned two heads. It is on the basis of the aggregate of the marks obtained in accordance with the procedure prescribed under sub rule (3) that the prospective candidates find their respective positions and place in the list as contemplated under sub rule (4). Significantly, Rules 15 neither postulates nor prescribes a minimum aggregate marks. The prescription of a minimum aggregate marks necessary results in denuding a candidate who fails to achieve the same, a place in the list which would be ultimately prepared under sub rule (4). The prescription of minimum aggregate marks directly affects the right of a candidate to find a position in the list envisaged under sub rule (4). If a candidate fails to attain the minimum marks as prescribed by the Commission, he would not stand included in the select list.
The seminal question which therefore arises is whether this prescription finds sanction or is contemplated under Rule 15. The answer to this question, on a plain construction of the rule, has to emphatically be in the negative. Rule 15 neither explicitly nor by intendment appears to confer any authority upon the Commission to impose any additional condition as a necessary precedent to a candidate finding a place in the list drawn up in accordance therewith. In fact and to the contrary the condition imposed by the Commission results in persons who would otherwise be entitled to find a position in the select list to be ousted. In the absence of any express provision in the 1979 Rules clothing the Commission with the authority to impose a condition of eligibility or to prescribe minimum qualifying marks, the impugned notification cannot sustain. No discretion as such stood vested in the Commission to formulate its own guidelines for the purposes of adjudging the eligibility or suitability of a candidate. It had and was constitutionally obligated to implement Rule 15 in its letter and spirit. As has been held above, the power to assess and adjudge "suitability" cannot be viewed as conferring authority upon the Commission to formulate its own norms independent of or contrary to the recruitment rules which govern the recruitment.
It is in that context that the Court now proceeds to take note of the decisions relied upon on behalf of the Commission. K.H. Siraj was a case where the Supreme Court was called upon to construe the provisions of Rule 7 of the Kerala Judicial Service Rules 1991. Rule 7, it becomes pertinent to note that the said Rule only provided for the list of suitable candidates to be prepared after following such procedure as the High Court deemed fit and evolved. The rule was noted by the Supreme Court in K.H. Siraj in the following terms: -
11.Kerala Judicial Service Rules, 1991 (hereinafter referred to as "the Rules") were made in exercise of the powers conferred by Articles 234 and 235 of the Constitution of India and sub-section (1) of Section 2 of the Kerala Public Services Act, 1968 (19 of 1968). Rule 7 of the Rules reads thus:
"7. Preparation of lists of approved candidates and reservation of appointments (1) The High Court of Kerala shall, from time to time, hold examinations, written and oral, after notifying the probable number of vacancies likely to be filled up and prepare a list of candidates considered suitable for appointment to category 2. The list shall be prepared after following such procedure as the High Court deems fit and by following the rules relating to reservation of appointments contained in rules 14 to 17 of Part II of the Kerala State and Subordinate Services Rules, 1958."
The list consisting of not more than double the number of probable vacancies notified shall be forwarded for the approval of the Governor. The list approved by the Governor shall come into force from the date of the approval and shall remain in force for a period of two years or until a fresh approved list is prepared, whichever is earlier."
It was in the backdrop of Rule 7 that the Supreme Court proceeded to consider whether a minimum eligibility condition could be prescribed. It ultimately held: -
"50. What the High Court has done by the Notification dated 26.3.2001 is to evolve a procedure to choose the best available talent. It cannot for a moment be stated that prescription of minimum pass marks for the written examination or for the oral examination is in any manner irrelevant or not having any nexus to the object sought to be achieved. The merit of a candidate and his suitability are always assessed with reference to his performance at the examination and it is a well accepted norm to adjudge the merit and suitability of any candidate for any service, whether it be the Public Service Commission (I.A.S., I.A.F. etc.) or any other. Therefore, the powers conferred by Rule 7 fully justified the prescription of the minimum eligibility condition in Rule 10 of the Notification dated 26.3.2001. The very concept of examination envisaged by Rule 7 is a concept justifying prescription of a minimum as benchmark for passing the same. In addition, further requirements are necessary for assessment of suitability of the candidate and that is why power is vested in a high powered body like High Court to evolve its own procedure as it is the best Judge in the matter. It will not be proper in any other authority to confine the High Court within any limits and it is, therefore, that the evolution of the procedure has been left to the High Court itself. When a high powered constitutional authority is left with such power and it has evolved the procedure which is germane and best suited to achieve the object, it is not proper to scuttle the same as beyond its powers. Reference in this connection may be made to the decision of this Court in Union of India v. Kali Dass Batish 2006(1) SCC 779:2006 SCC (L&S) 225] wherein an action of the Chief Justice of India was sought to be questioned before the High Court and it was held to be improper."
It negatived the argument that the selecting body in that case did not have the power to prescribe such a minimum eligibility condition. This conclusion was arrived at bearing in mind the language of Rule 7 which had not spelt out any details on the basis of which the suitability of a candidate was liable to be adjudged. Since Rule 7 had left the formulation of standards to the wisdom of the High Court, the Supreme Court proceeded to uphold the prescription of a minimum eligibility condition. The other aspect of significance which must be borne in mind while understanding the essence of the decision in K.H. Siraj is that here the minimum eligibility conditions had been formulated by the High Court and not by the selecting body as in the present case. This Court notes this since no decision of the State Government is relied upon which may have conferred the jurisdiction or authority upon the Commission to prescribe a minimum eligibility condition. At least no decision of the State taken specifically for this recruitment or for that matter after the promulgation of the 1979 Rules was referred or relied upon.
Reverting to the decisions cited by Sri G.K. Singh, it is relevant to note that Sushil Kumar Srivastava rests upon the provisions of Rule 15 (3) of the Uttar Pradesh Transport (Subordinate) Technical Service Rules 1980. It was this decision alone which was relied upon by Sri Singh in support of his submission that the formulation of minimum standards had received judicial approval. The Rules which were duly taken notice of by a learned Judge in the aforementioned decision clearly provided that the Commission would summon for interview such number of candidates as on the result of the written examination had come up to the standard fixed by the Commission in this respect. Rule 15 (3) which fell for consideration in that decision read thus: -
"15(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."
It was in the context of this specific and unambiguous conferral of power on the Commission that its action of prescribing minimum qualifying marks was upheld. This position was noted by the learned Judge in paragraph 18 in the following terms:-
"18. 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. "
It is thus evident that it was clearly found that Rule 15(3) specifically empowered the Commission to fix a minimum standard.
Turning to the decision in Rafiquddin, the Court notes that this decision principally dealt with a directive of the State Government to the Commission therein to lower the minimum qualifying marks that had been fixed. Here also the High Court was concerned with Rule 19 the proviso of which clearly and specifically empowered the Commission to satisfy itself that the candidate had obtained such aggregate marks in the written test that qualified him to be held as eligible to be appointed to service. Similarly the said provision conferred the authority on the Commission to satisfy itself that the candidate had obtained in the interview such sufficiently high marks which would establish that he was suitable for service. Rule 19 which was considered by the Supreme Court in the said decision was in the following terms: -
" 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 candidate 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."
It is, therefore, more than evident that there is no similarity between the Rule which was considered by the Supreme Court in Rafiquddin and Rule 15 of the 1979 Rules which govern the present controversy. Reliance placed on S. Vinodh Kumar is also of no assistance to the Commission. This too was a decision which dealt with the validity of a communication requiring a lowering of cut off marks fixed. It was in that context that the following observations came to be made: -
"10. It may be true that the cut-off marks at 71 had been fixed for unreserved candidates on the basis that marks obtained by the last candidate, i.e. 240th candidate, calculated at 50% of the 480 candidates, but concededly 56 marks were fixed for Other Backward Classes candidates and 20 marks were fixed for Scheduled Caste and Scheduled Tribe candidates. Only because the cut-off marks at 71 had been fixed on the basis of the aforementioned criteria, the same by itself, in our opinion, would not mean that no cut-off mark had been fixed. The fact that the Railway Administration intended to fix the cut-off mark for the purpose of filling up the vacancies in respect of the general category as also reserved category candidates is evident from the fact that different cut-off marks were fixed for different categories of candidates. We are, therefore, unable to accept the submission of the learned counsel that the cut-off marks fixed was wholly arbitrary so as to offend the principles of equality enshrined under Article 14 of the Constitution of India. The power of the employer to fix the cut-off marks is neither denied nor disputed. If the cut-off mark was fixed on a rational basis, no exception thereto can be taken. "
The aspect of significance which must be noted is that here also the minimum qualifying marks had been fixed by the Railway Administration and not the selecting body. It was in that view that the Supreme Court held that the Railways had the requisite jurisdiction to fix the cut off marks.
The case of the petitioners, in the considered view of this Court, must ultimately succeed bearing in mind the decision of the Supreme Court in State of Punjab Vs. Manjit Singh9. This was a case where the Commission had proceeded to fix a minimum eligibility criteria de hors the relevant Rules which applied. The defense taken before the Supreme Court by the Commission was that for medical services, where members have to deal with health and life, a minimum standard of efficiency must be ensured and that it was the bounden duty of the Commission to achieve the same. Negativing this contention, the Supreme Court held thus:-
"9.In the present case, the stand of the appellant Commission is that for medical services where the members of service have to deal with the health and life of the people, they must have some minimum standard of efficiency and it is the bounden duty of the Commission to ensure the same. It is perhaps with this view in mind that the Commission fixed 45% minimum qualifying cut-off marks for general category candidates and 40% cut-off marks for Scheduled Caste candidates. We feel, here lies the fallacy in the whole reasoning of the Commission. It is no doubt true that the Commission is an independent and autonomous body and has to work without influence of any authority or the government. It is rather under duty to act independently. But at the same time the fact cannot be lost sight of that the State Government is competent to lay down the qualifications for different posts, and frame rules for the purpose or take policy decisions which may of course not be against the law.
11.In the case in hand, it was not for the Commission to have fixed any cut- off marks in respect of reserved category candidates. The result has evidently been that candidates otherwise qualified for interview stand rejected on the basis of merit say, they do not have the upto the mark merit, as prescribed by the Commission. The selection was by interview of the eligible candidates. It is certainly the responsibility of the Commission to make the selection of efficient people amongst those who are eligible for consideration. The unsuitable candidates could well be rejected in the selection by interview. It is not the question of subservience but there are certain matters of policies, on which the decision is to be taken by the Government. The Commission derives its powers under Article 320 of the Constitution as well as its limits too. Independent and fair working of the Commission is of utmost importance. It is also not supposed to function under any pressure of the government, as submitted on behalf of the appellant Commission. But at the same time it has to conform to the provisions of the law and has also to abide by the rules and regulations on the subject and to take into account the policy decisions which are within the domain of the State Government. It cannot impose its own policy decision in a matter beyond its purview."
The decision in Manjit Singh in the considered view of the Court is a complete answer to the defense set up by the Commission that its obligation to consider the suitability of a candidate conferred on it the authority and jurisdiction to also prescribe a minimum eligibility criteria.
That then takes the Court to the validity of the 1966 Resolution on which the case of the Commission fundamentally rests. While the said decision has been impugned by the petitioners in these petitions, this Court is of the considered opinion that its validity need not to be ruled upon for the following reasons.
The Resolution of 1966 would have to firstly be established to be in a position where it either overrides or subsumes the 1979 Rules. As has been noted above, Rule 15 confers no discretion on the Commission to prescribe any minimum qualification which may result in the ouster of a candidate who would otherwise be entitled to find a place in the list drawn up under sub rule (4). The 1966 Resolution is incompatible with the procedure of adjudging suitability as enshrined in Rule 15. Once the 1979 Rules came to be promulgated by the Governor by exercise of powers conferred by the proviso to Article 309 of the Constitution, the 1966 Resolution could have had no independent application and would clearly be subservient to the recruitment rules which applied.
Secondly, as is evident from the Preamble to the 1979 Rules, these had come to be promulgated in supersession of all existing rules or orders. The 1966 Resolution of the Commission could not operate once the field came to be occupied completely and in all respects by the statutory rules framed in exercise of powers conferred by the proviso to Article 309 of the Constitution.
Regard must also be had to the fact that when the 1979 Rules were framed and enforced, the 1966 Resolution was in existence. The 1979 Rules were amended as recently as 2016 when the Fourth Amendment was promulgated. It was always open for the State at both these stages to give effect to the decision of the Commission or incorporate it in the rules. It could have in any view of the matter, if it thought appropriate or fit, incorporated a measure in the statutory rules either conferring or recognising the authority of the Commission to prescribe a minimum qualifying standard aimed at securing the efficiencies in service and for assessing the suitability of a candidate. The State chose not to do so. In view of the above, this Court is of the firm opinion that the impugned notification cannot be sustained and that the 1966 Resolution could not have been resorted to once the statutory rules came into force.
Lastly, the Court notes that as per the Commission itself, the 1966 resolution which dealt essentially with a recruitment exercise comprising of a written examination and interview was never adapted by the Commission to apply to a hybrid system of evaluation as contemplated under Rule 15 of the 1979 Rules. Rule 15 does not envisage any interview being conducted for the purposes of adjudging suitability. As has been noted hereinabove, the Rule only prescribes the award of marks under the head of written examination and experience gained while discharging service on contractual basis. The 1966 resolution on its plain terms, therefore, had no application to the recruitment in question. In any view of the matter and since the Commission candidly admits that this resolution was never specifically "adapted" to the recruitment exercise with which we are concerned, it could have had no application whatsoever.
Regard must also be had to the fact that the Commission does not defend the 1966 Resolution or the impugned notification on the ground of shortlisting as generally understood. It has chosen to defend its action and decisions solely on the ground of adjudging the "suitability" of a candidate. This was clearly impermissible and in any case was not in conformity with the provisions of the 1979 Rules.
On an overall consideration of the aforesaid conclusions on which the Court arrives, it finds itself unable to sustain the impugned notification dated 1 September 2018.
Accordingly, these writ petitions shall stand allowed to the following extent-
The notification of the Commission dated 01 September 2018 insofar as it purports to exclude candidates who have not obtained the minimum qualifying marks is hereby quashed. The Commission shall in consequence redraw the final result strictly in accordance with the mandates of Rule 15 as explained in this decision and thereafter proceed in the matter in accordance with law. The selection and results, if any drawn and prepared during the pendency of the present writ petitions, shall consequently be amended and published in accordance with this decision.
Order Date: - 11.12.2018/faraz