Allahabad High Court
Ashok Kumar Nayak vs State Of U.P. And Anr. on 3 September, 2003
Equivalent citations: 2004(1)AWC129, (2004)1UPLBEC119
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. That the provisions of the Subordinate Civil Courts Ministerial Establishment Rules, 1947 (hereinafter referred as the Rules, 1947) and of the Uttar Pradesh Rules for the Recruitment of Ministerial Staff of the Subordinate Offices in Uttar Pradesh, 1950, (hereinafter referred to as the Rules, 1950) are applicable for the recruitment of the Ministerial Staff including the stenographers of the subordinate civil courts in Uttar Pradesh.
3. Rule 3 of the Rules, 1947, lay down that the Stenographers should form a separate cadre. It is alleged in the petition that separate applications were invited in the year 1997-98 for the recruitment of 27 Clerks in Grade-III and 6 Stenographers (Hindi) in the Judgeship of district Hamirpur.
4. Since the post of Clerks in Grade-III and that of stenographers (Hindi) form a separate cadre, the petitioner applied separately for both the posts. Holding of the examination for the recruitment of the aforesaid posts was cancelled vide C. L. No. 9 dated 29.4.1999 issued by the Registrar General of the High Court of Judicature at Allahabad. The District Judge, Hamirpur, vide Notification No. 676 dated 16th July, 1999, again invited applications for the recruitment on the posts of stenographers (Hindi). The aforesaid notification states that the candidates who had appeared in the examination dated 26.7.1998 need not apply again and instead they have to furnish certain information.
5. Vide Notification No. 810 dated 12th August, 1999, it was informed to all the candidates appearing in the examination dated 21.11.1999, that there would be a written test comprising of four (4) papers, carrying 50 marks in each paper and a test of shorthand (Hindi) and typing only for the stenographers (Hindi) carrying 50 marks.
6. It is submitted that since the petitioner was eligible for both the posts of clerk and stenographer (Hindi), he had applied for both the posts separately. He was allotted Roll No. 362 for the post of clerk and Roll No. 146 for the post of stenographer (Hindi). The results of the aforesaid examination were published on 24.2.2000, in the Hindi Daily Newspaper 'Dainik Jagaran' which is annexed as Annexure-4 to the writ petition. It is further submitted that the results show that the names of the candidates selected for the posts of clerks and no candidates for the posts of stenographers (Hindi) was found eligible.
7. It is contended by the counsel for the petitioner that neither the Rules, 1947 nor the Rules. 1950 nor the Notification No. 676 dated 16.7.1999 (Annexure-2 to the writ petition) nor the Notification No. 810 dated 12.8.1999 (Annexure-3 to the writ petition) prescribe the minimum qualifying/pass marks in the written test of 4 subjects, carrying 50 marks in each subject. On the contrary Notification No. 676 dated 16.7.1999 (Annexure-2 to the writ petition), does prescribe the minimum speed in shorthand (Hindi) and typing. It is submitted that the respondents have failed to produce before this Court any provisions relating to the recruitment of stenographers in the subordinate civil courts prescribing minimum qualifying/pass marks in the written test in each of the four subjects. It is relevant to mention here that the candidates who had applied only for the posts of clerk were not required to appear in the shorthand-typing test. On the contrary, the candidates who had applied for both posts of clerk and stenographer (Hindi) were required to appear in the written test as well as in the test of shorthand (Hindi) typing.
8. It is further submitted that the reasons given by the respondents for non-selection of any candidate for the post of stenographers (Hindi) is that none of the candidate had qualified in the written test is arbitrary and against the law inasmuch as neither the aforesaid two rules nor the aforesaid two notifications prescribe the minimum qualifying/pass marks in the written test. It is urged that since clerk and stenographers are two different cadres therefore, two separate merit list each for the aforesaid post ought to have been prepared but the merit list for the post of stenographer (Hindi) was not prepared. The counsel for the petitioner further contends that the candidates for the posts of stenographers (Hindi) who possessed the minimum speed in the shorthand/typing test could be qualified on the basis of whatever marks obtained in the written test in order of merit and the respondents were bound to declare a merit list of the candidates who have applied for the post of stenographers (Hindi) and select the candidates in order of merit. Counsel for the petitioner has placed reliance on State of U. P. and Ors. v. Ramagya Chaubey, 2000 (2) AWC 1061.
9. It is prayed that the petitioner having qualified in the shorthand (Hindi/typing test and no other candidate having come forward before this Court challenging non-selection for the post of stenographers (Hindi) a direction may be issued to the respondents to appoint the petitioner on the post of stenographers (Hindi) on the basis of marks obtained in the written test.
10. Counsel for the respondents has relied upon paragraphs 18 and 19 of the counter-affidavit wherein it has been stated that even though the petitioner has obtained 100% marks in Hindi shorthand and typing test but he could not be included in the select list as his performance was very poor in the written test and the result of the test was declared on the basis of overall performance as required under the rules read together with the High Court Circular No. 8/ve-4/Admn (D) dated 9.2.1995 and he has rightly been declared unsuccessful.
11. There are hundred posts on which appointment has to be made from larger number of candidates by competitive test. Best candidates have to be selected. It is not examination for passing test for selection to a post. The selecting authority can fix criterion for selecting best person and fix minimum marks.
12. In State of U. P. v. Rafiquddin and Ors., 1987 (Supp) SCC 401, connected with six other cases, considered similar points in respect of appointment in U. P. Civil Service (Judicial Branch) Rules, 1951, held that "a candidate who had merely secured a minimum of the aggregate marks or above was not entitled to be included in the list of successful candidates unless he had also secured the minimum marks which has been prescribed for viva voce test.
13. Relying upon the case of Manjula Devi v. State of Karnataka, 1987 (4) SCC 646, it was held that the process of selection of suitable candidates to a post fixing the minimum standard to be crossed by the candidates can be fixed by the selection committee. In paragraph 12 the Court held that:
"The Division Bench of the High Court observed that the Commission had no authority to fix any minimum marks for the viva voce test and even if it had such a power it could not prescribe the minimum marks without giving notice to the candidates. The Bench further observed that if the commission had given notice to the candidates before the steps for holding the competitive examination were taken the candidates may or may not have appeared at the examination. In our opinion, the High Court committed a serious error in applying the principles of natural Justice to a competitive examination. There is a basic difference between an examination held by a college or university or examining body to award degree to candidates appearing at the examination and a competitive examination. The examining body or the authority prescribes minimum pass marks. If a person obtains the minimum marks as prescribed by the authority he is declared successful and placed in the respective grade according to the number of marks obtained by him. In such a case it would be obligatory on the examining authority to prescribe marks for passing the examination as well as for securing different grades well in advance. A competitive examination on the other hand is of different character. The purpose and object of the competitive examination is to select most suitable candidates for appointment to public services. A person may obtain sufficiently high marks and yet he may not be selected on account of the limited number of posts and availability of persons of higher quality. Having regard to the nature and characteristics of a competitive examination it is not possible nor necessary to give notice to the candidates about the minimum marks, which the Commission may determine for purposes of eliminating the unsuitable candidates. The rule of natural Justice does not apply to a competitive examination."
14. It, therefore, follows that in the object of examination in school, university or college i.e., different within selective or competitive examination in the competitive examination. The selection committee has to be given free hand of fixed minimum qualifying marks for selection of the candidates, which may vary according to the marks obtained by the candidates. The nature of the examination, the question asked in the question paper etc., the others are of variables therefore, cannot be fixed by the Court and the suitability of the candidates has to be judged in the competitive examination for which it is necessary that he has to come within minimum criteria for selection in merits.
15. The aforesaid case was followed by the Supreme Court in Mahmood Alam Tarique and Ors. v. State of Rajasthan and Ors., JT 1988 (II) SC 417, wherein the following passage from Rafiquddin's supra has been quoted with approval :
"If any minimum marks either in the written test or in viva voce test are fixed to determine the suitability of a candidate the same has to be respected. Clause (ii) of the proviso to Rule 19 clearly confers power on the ommission to fix minimum marks for viva voce test for judging the suitability of a candidate for the service. We do not find any constitutional legal infirmity in the provision."
16. Admittedly not a single candidate could succeed in the test for Hindi stenographers on the basis of the combined merit list and, therefore, the petitioner cannot complain of any discrimination or claim a right that he is liable to be appointed.
17. When a test is held prescribing subject and marks it is implicit that the candidates have to pass the test in the prescribed subjects. There is inbuilt condition that the candidate has to pass the test for which minimum marks can be fixed by the selection committee for proper selection for determining overall suitability in general. Fixing minimum marks for each subject is not illegal or against any rule. The selection committee can. therefore, fix a standard of minimum marks to select most suitable person. Keeping in view the number of post, general trend of marks obtained, requirement of knowledge required for the post etc. prescribing minimum marks for passing in each subjects is reasonable and fair and for achieving the objects of holding test for determining suitability cannot be said to be illegal. If minimum speed for stenographers can be prescribed minimum marks in other subjects can also be fixed by the selection committee for the purpose of selection in each subject. In case of Mohd. Alam (supra) the Apex Court said that:
"This Court redirected that in matters such as these which reflects matter of policy, judicial wisdom is judicial restraint generally matters of policy have little adjudicative disposition."
18. For these reasons the writ petition fails and is dismissed. No order as to costs.