Allahabad High Court
Manish Kumar Yadav And 49 Ors. vs State Of U.P. Thru Adll. Chief Secy. Home ... on 30 March, 2019
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No.23
1. Case :- SERVICE SINGLE No. - 6540 of 2019
Petitioner :- Manish Kumar Yadav And 49 Ors.
Respondent :- State Of U.P. Thru Adll. Chief Secy. Home Lucknow And Ors.
Counsel for Petitioner :- Sameer Kalia,Rajat Rajan Singh
Counsel for Respondent :- C.S.C.
CONNECTED WITH
2. Case :- SERVICE SINGLE No. - 7024 of 2019
Petitioner :- Saurabh Kumar Singh And 20 Ors.
Respondent :- State Of U.P. Thru Addl. Chief Secy. Home Lucknow And Ors.
Counsel for Petitioner :- Vidhu Bhushan Kalia,Abhishek Kumar,Rajat Rajan Singh
Counsel for Respondent :- C.S.C.
WITH
3. Case :- SERVICE SINGLE No. - 7167 of 2019
Petitioner :- Pratiksha Singh And 44 Ors.
Respondent :- State Of U.P. Thru Addl.Chief Secy. Home Lucknow And Ors.
Counsel for Petitioner :- Sameer Kalia,Rajat Rajan Singh
Counsel for Respondent :- C.S.C.
WITH
4. Case :- SERVICE SINGLE No. - 7259 of 2019
Petitioner :- Shubham Singh Chandravanshi And 199 Ors.
Respondent :- State Of U.P. Thru Addl.Chief Secy. Home Lucknow And Ors.
Counsel for Petitioner :- Sameer Kalia,Abhimanyu Singh,Rajat Rajan Singh
Counsel for Respondent :- C.S.C.
WITH
5. Case :- SERVICE SINGLE No. - 7310 of 2019
Petitioner :- Sachin Singh
Respondent :- State Of U.P. Thru Addl.Secy. Recruitment & Promotion & Anr.
Counsel for Petitioner :- Dilip Kumar Pandey,Akhilesh Kumar
Counsel for Respondent :- C.S.C.
WITH
6. Case :- SERVICE SINGLE No. - 7261 of 2019
Petitioner :- Kuldeep Singh And 16 Ors.
Respondent :- State Of U.P. Thru Addl.Chief Secy. Home Lucknow And Ors.
Counsel for Petitioner :- Sameer Kalia,Rajat Rajan Singh,Varun Kumar Sharma
Counsel for Respondent :- C.S.C.
WITH
7. Case :- SERVICE SINGLE No. - 7262 of 2019
Petitioner :- Ashutosh Tiwari And 146 Ors.
Respondent :- State Of U.P. Thru Addl.Chief Secy. Home Lucknow And Ors.
Counsel for Petitioner :- Sameer Kalia,Akash Shukla,Rajat Rajan Singh
Counsel for Respondent :- C.S.C.
WITH
8. Case :- SERVICE SINGLE No. - 7615 of 2019
Petitioner :- Ajeet Singh And Another
Respondent :- State Of U.P.Thru Prin.Secy. Home Lucknow And Ors.
Counsel for Petitioner :- Shiv Kumar,Rakesh Kumar Abhir
Counsel for Respondent :- C.S.C.
WITH
9. Case :- SERVICE SINGLE No. - 8079 of 2019
Petitioner :- Ankit Shukla
Respondent :- State Of U.P. Thru Addl.Chief Secy. Home Lucknow & Ors.
Counsel for Petitioner :- Ram Singh
Counsel for Respondent :- C.S.C.
WITH
10. Case :- SERVICE SINGLE No. - 7810 of 2019
Petitioner :- Sukhdeep Singh And Another
Respondent :- State Of U.P.Thru Prin.Secy. Appointment Lucknow & Ors.
Counsel for Petitioner :- Manoj Kumar Gupta,Swati Singh Rajawat
Counsel for Respondent :- C.S.C.
WITH
11. Case :- SERVICE SINGLE No. - 8075 of 2019
Petitioner :- Akhilesh Kumar
Respondent :- State Of U.P. Thru Addl.Chief Secy. Home Lucknow & Ors.
Counsel for Petitioner :- Ram Singh
Counsel for Respondent :- C.S.C.
*****
Hon'ble Rajesh Singh Chauhan,J.
Heard Sri S.K. Kalia, learned Senior Advocate, assisted by Sri Sameer Kalia and Sri Rajat Rajan Singh, Advocates for the petitioners as well as learned counsel appearing for the petitioners in the other writ petitions and Sri Raghvendra Kumar Singh, learned Advocate General, U.P., for the State-respondents.
Issue notice to respondent Nos.3 to 16 returnable at an early date. Since in the connected writ petitions some private respondents have been impleaded as respondents, therefore, let the notices be issue to all the private respondents in the connected writ petitions.
Let necessary steps be taken within a week.
Office to proceed accordingly.
Since the issue involved in these batch of writ petitions is common, therefore, a common order is being passed in all these writ petitions.
By means of this batch of writ petitions, the petitioners have assailed the final select list/ result dated 28.02.2019, issued by the U.P. Police Recruitment & Promotion Board, Lucknow, opposite party No.2, whereby the petitioners have been declared unsuccessful on the ground of "Failed in Written Examination".
This matter was taken up for admission on 07.03.2019 and this Court passed order, as under:-
"Heard Sri Sameer Kalia, learned counsel for the petitioner while notices on behalf the opposite party nos.1 and2 have been accepted in the office of the learned Chief Standing Counsel. At the present stage in view of the fact that the learned standing counsel is being asked only to obtain instructions in the matter, notices to opposite party nos.3 to 16 are dispensed with for the time being.
The learned counsel for the petitioner has submitted that for the recruitment process pertaining to the post of Sub-Inspector (Civil Police), Platoon Commander (P.A.C.) and Fire Fighting Second Officer, the petitioners have been declared unsuccessful on account of the implementation of Equi-percentile Method which he submits is not provided for in the service regulations pertaining to the recruitment of such post. He has relied upon the cases of Hon'ble Supreme Court in the case of Sanjay Singh and another vs U.P. Public Service Commission, Allahabad and others reported in 2007 Volume 3 SCC Page 720 and U.P. Public Service Commission vs Manoj Kumar Yadav and another reported in 2018 Volume 3 SCC Page 706 to substantiate his submissions that in the present case the question papers being objective in nature there would not be any subject or examiner variability and as such the aforesaid method adopted by the Recruitment Board is incorrect and against the provisions of the recruitment rules.
For the aforesaid submissions, the learned standing counsel is directed to obtain instructions specifically as under which provision of law the Equi-percentile Method has been imposed with regard to the aforesaid recruitment.
List this case on 12.03.2019 as a fresh case."
Since no instructions were received by the counsel for the State-respondents, therefore, this Court passed order dated 12.03.2019, as under:-
"Earlier the learned Standing Counsel had been granted time to seek instructions as to under which provision of law the Equi-percentile Method has been adopted for the on going selections on the post of Sub Inspector. The learned Standing Counsel submits that he has not yet received proper instructions in the matter. As such, list this case on 15th March, 2019 as a fresh case along with writ petition No.7167(S/S) of 2019, on which date the Additional Chief Secretary, Department of Home and the Secretary, U.P. Police Recruitment & Promotion Board shall file their personal affidavits explaining the aforesaid issue. In view of the large number of selections which could be effected due to the present writ petition, the learned Advocate General may also assist the court on the next date."
The case was again listed on 15.03.2019 and learned Additional Chief Standing Counsel prayed a week's time to file personal affidavits of the authorities in terms of order dated 12.03.2019. This Court granted a week's time to the learned Additional Chief Standing Counsel and fixed this case for 25.03.2019.
On 25.03.2019, the personal affidavits of Principal Secretary (Home), Government of U.P., Lucknow and of Secretary, U.P. Police Recruitment and Promotion Board, Lucknow have been filed and the case was fixed for 26.03.2019, as Sri S.K. Kalia, learned Senior Advocate for the petitioners was pressing interim relief application.
On 26.03.2019, the matter was heard for disposal of interim relief application but on the request of learned counsel for the parties, it was listed on 27.03.2019.
On 27.03.2019, this Court passed the following order:-
"Heard Sri S.K. Kalia, learned Senior Advocate assisted by S/Sri Sameer Kalia, Vidhu Bhushan Kalia and Rajat Rajan Singh and Sri Raghvendra Kumar Singh, learned Advocate General, U.P. assisted by Sri Pradeep Kumar Singh, learned Additional Chief Standing Counsel.
List/ put up on 30.3.2019 for the delivery of the order at 1.00 P.M. Till the next date of listing no appointment letter shall be issued to the selected candidates. However, the process which is being undertaken by the State Authorities may go on."
The brief facts and circumstances of the issue, for the purpose of disposal of interim relief application, are as under:-
The opposite party No.2 issued an advertisement dated 27.06.2016 for recruitment to the post of Sub-Inspector (Civil Police), Platoon Commander (P.A.C.) and Fire Fighting Second Officer. The Item No.4 of the aforesaid advertisement provides the procedure of selection and the same has categorically indicates that the aforesaid selection shall be conducted under the provisions of the Uttar Praesh Sub-Inspector and Inspector (Civil Police) Service (First Amendment) Rules, 2015 (here-in-after referred to as the "Service Rules, 2015"). The aforesaid advertisement provides that examination shall be held on "On-line basis" and Item No.4.5 thereof provides that there shall be four papers consisting of 100 marks each. Those papers would be (i) General Hindi (ii) Basic Law/ Constitution/ General Knowledge (iii) Numerical and Mental Ability Test (iv) Mental Aptitude Test/ I.Q. Test/ Reasoning. The aforesaid advertisement further provides that the candidates failing to obtain 50% marks in each of the above subjects shall not be eligible for recruitment.
As per Rule 15 (b) of the Service Rules, 2015, there is provision of written examination. Rule 15 (b) has been indicated in the advertisement in question vide Item No.4.1. Therefore, there is no quarrel on the point that examination in question was to be conducted strictly as per Rule 15 (b) of the Service Rules, 2015.
Learned counsel for the petitioners has drawn attention of this Court towards the notification dated 28.06.2017 issued in respect of selection in question by opposite party no.2, which is contained in Annexure No.4 to the writ petition. The aforesaid notification prescribe the procedure to conduct the On-line examination. Item No.9 thereof clearly provides that candidate failing to obtain 50% marks in each of the subjects shall not be eligible for recruitment. It is noted here that the aforesaid condition is the same as has been prescribed under Rule 15 (b) of Service Rules, 2015. However, Item No.4 of the aforesaid notification provides verbatim the same, which has been indicated in Rule 15 (b) of Service Rules, 2015, but one condition has been added i.e. the marks of candidates shall be counted through "Standardized Equi-percentile Method".
As per learned counsel for the petitioners since the advertisement in question clearly provided that the selection in question shall be conducted as per Service Rules, 2015 and even the notification dated 28.06.2017 also provided that the candidate failing to obtain 50% marks in each of the subjects shall not be eligible for recruitment, therefore, the petitioners did not assail Item No.4 of the notification dated 28.06.2017 to the extent it provides application of "Standardized Equi-percentile Method".
Learned counsel for the petitioners has further drawn attention of this Court towards final result being declared, which indicates that however the petitioners are qualified in terms of Rule 15 (b) of the Service Rules, 2015, condition of advertisement dated 17.06.2016 and Item No.9 of the notification dated 28.06.2017 as they have obtained 50% marks in each subjects but declared unsuccessful on account of implementation of the "Standardized Equi-percentile Method". Therefore, assailing the aforesaid inaction they filed this writ petition. The petitioners also assailed the final select list/ result dated 28.02.2019.
The ground to assail the aforesaid inaction and also the select list/ result dated 28.02.2019 is that the condition of the application of "Standardized Equi-percentile Method" is not prescribed under the Service Rules, 2015, therefore, such condition may not be applied while issuing the final select list.
Sri S.K. Kalia, learned Senior Advocate has also submitted that the advertisement dated 17.06.2016, Rule 15 (b) of the Service Rules, 2015 as well as the notification dated 28.06.2017 provide for "percentage" not "percentile". As per Sri Kalia, declaring result on the basis of "percentile" in place of "percentage" would be dehorse the Rules.
Sri S.K. Kalia, learned Senior Advocate has further submitted that however Rule 15 (b) of the Service Rules, 2015 provides that "Detailed Procedure for Written Examination shall be determined by the Board and will be displayed on its any Website", but it does not mean that the Board would provide any new thing which is not included in the rules itself. The Board may not supplant the rules by way of notification, therefore, the condition No.4 of the notification dated 28.065.2017 to the extent it applies the "Standardized Equi-percentile Method" is an arbitrary exercise.
Sri S.K. Kalia, learned Senior Advocate has therefore submitted that the aforesaid inaction on the part of the opposite party No.2 is in derogation of the dictum of Hon'ble Apex Court in re: Sanjay Singh and another vs. U.P. State Public Service Commission, Allahabad and another reported in (2007) 3 SCC 720 and in re: U.P. State Public Service Commission vs. Manoj Kumar Yadav and another reported in (2018) 3 SCC 706. Sri Kalia has referred paras-12 and 13 of Uttar Pradesh Public Service Commission vs. Manoj Kumar Yadav & others (supra), which read as under:-
"12. It is clear from the above that the process of scaling is a recognized method for ensuring uniformity amongst candidates who have taken examinations in different subjects. When there are a number of examiners evaluating the papers of a large number of candidates in an examination, there is a possibility of "examiner subjectivity" or "examiner variability". To minimise the examiner variability, this Court in Sanjay Singh's case held that moderation would be the best method to be followed.
13. In the P.C.S. Examination, 2004 and the Backlog Examination, 2004 the candidates had to take part in the main written examinations which consisted of four compulsory subjects and two optional subjects. The compulsory subjects were common to all candidates and the two optional subjects were to be chosen from the available 33 subjects as mentioned in the advertisements. As per the judgment of this Court in Sanjay Singh's case, the Commission could have followed the scaling method only for the optional subjects and not for the compulsory subjects. However, it is clear from the submissions made on behalf of the Appellant in the High Court that scaling method was followed even for compulsory subjects. We approve the findings of the High Court that the evaluation of P.C.S. and Backlog recruitment examinations, 2004 was contrary to the judgment of this Court in Sanjay Singh's case."
As per Sri Kalia, the Hon'ble Apex Court in re: Sanjay Singh (supra) has permitted "scaling system" for the reason that large number of candidates take the examination and the answer script is evaluated by the different Examiners, therefore, "scaling System" may be permitted but in the instant case neither there is possibility of 'examiners variability' nor the 'subject variability' as in the present case the question paper being objective in nature and those shall be checked by the Computer, therefore, as per Sri Kalia, the "Standardized Equi-percentile Method" should not be applied in the present case.
Per contra, Sri Raghvendra Kumar Singh, learned Advocate General, U.P. has submitted with vehemence that since the petitioners have appeared in the examination in question after knowing the procedure so prescribed by the Board without making any protest on that, therefore, they may not be permitted to assail the select list after being declared as unsuccessful.
Sri Raghvendra Kumar Singh, learned Advocate General has further submitted that it is well within the domain of the Board under Rule 15 (b) of the Service Rules, 2015 to determine the procedure for written examination. Therefore, it cannot be objected by the petitioners after being appeared in the examination in question knowing fully well about the procedure as the same has been notified on 28.06.2017.
In support of his above contention, the learned Advocate General has placed reliance on the dictum of Hon'ble Apex Court in Re: D. Sarojakumari vs. R. Helen Thilakom and others reported in (2017) 9 SCC 478 and the judgment and order dated 21.10.2016 passed in the case of Ashok Kumar and another vs. State of Bihar and others (Civil Appeal No.9092 of 2012).
Replying to the aforesaid contention of the learned Advocate General, Sri Kalia has submitted with vehemence that in both the aforesaid judgments the Hon'ble Apex Court has held that when a candidate appears at examination without objection and is subsequently found to be unsuccessful, a challenge to the process is precluded, but in the present case, the petitioners are not assailing the process of selection but are respectfully praying that the process of selection as prescribed under the Service Rules, 2015 be followed strictly. Sri Kalia has further submitted that if the process of selection is in derogation of the rules, the same could have been assailed by the candidates who have been declared unsuccessful.
As per Sri Kalia, since the final result/ select list has been declared in dehorse the Service Rules, 2015 and the said fact has been made aware to the petitioners after the declaration of the select list dated 28.02.2019, the petitioners have challenged the said select list by means of this writ petition. Even otherwise there may be no estoppel against the statute or Rules.
In support of his aforesaid contention Sri Kalia has placed reliance on the dictum of Hon'ble Apex Court in re: Raj Kumar and others vs. Shakti Raj And others reported in (1997) 9 SCC 527, referring para-16 thereof, which is being reproduced here-in-below:-
"16. Yet another circumstance is that the Government had not taken out the posts from the purview of the Board, but after the examinations were conducted under the 1955 Rule and after the results were announced, it exercised the power under the proviso to para 6 of 1970 notification and the posts were taken out from the purview thereof. Thereafter the Selection Committee was constituted for selection of the candidates. The entire procedure is also obviously illegal. It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal vs. State of J & K [(1995) 3 SCC 486] and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the selection Board or the method of Selection as being illegal; he is estopped to question the correctness of the selection. But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under 1955 Rules, So also in the method of selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case. Thus, we consider that the procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action take by the Government are not correct in law."
Sri Raghvendra Kumar Singh, learned Advocate General has also referred the judgment of Hon'ble Apex Court in re: Sanjay Singh (supra) submitting that the Hon'ble Apex Court has himself held that the "scaling process", whereby raw marks in different subjects are adjusted to a common scale, and the same is a recognized method of ensuring uniformity inter se amongst the candidates who have taken examinations in different subjects, as, for example, the Civil Services Examination. As per Sri Singh, the Hon'ble Apex Court has further held that in the Judicial Service Examination, the candidates were required to take the examination in respect of the all five subjects and the candidates did not have any option in regard to the subjects. In such a situation, moderation appears to be an ideal solution. Therefore, Sri Singh has submitted that the scaling procedure is adopted to reduce the examiners subjectivity or variability, which is also known as moderation.
Sri Raghvendra Kumar Singh, learned Advocate General has referred the order dated 24.04.2017 passed by the Hon'ble Apex Court in re: Writ Petition (C) No.183 of 2013; Manish Kumar vs. Union of India and others saying that the Hon'ble Apex Court has clearly fixed the time line for recruitment of 11376 vacant posts of Sub-Inspector of Police through direct recruitment and as per the time line the training of those candidates should be commenced in the month of February, 2019.
Para-1 of the aforesaid order makes it crystal clear that the present issue is not covered with the aforesaid judgment of Hon'ble Apex Court as the vacancy in question for which the selection has been completed is for the year 2016 and the advertisement for recruitment has been issued on 17.06.2016, whereas the order dated 24.04.2017 of the Hon'ble Apex Court is relating to the direct recruitment for the post of Sub-Inspector of Police for the vacancy of the year 2018, the Constable of Police for the vacancy of the year 2017, 2018, 2019 and 2020. Para-1 of the order dated 24.04.2017 reads as under:-
"1. 11,376 vacant posts of Sub-Inspector of Police, are to be filled up by way of direct recruitment. Mr. Debasish Panda, Principal Secretary (Home), Government of Uttar Pradesh, who is present in Court in person, affirms, that 3200 vacancies of the posts of Sub-Inspector of Police, will be filled up each year over four years commencing from the year 2018. The advertisement notifying the vacancies for 2018 will be issued in the month of January, 2018, the result of the selection process will be declared in October, 2018, the training of the selected candidates will commence in February, 2019, and will conclude in January, 2020. The schedule for the next three years, we are assured, will remain the same, as for the year 2018."
Replying the aforesaid contention of the learned Advocate General, Sri S.K. Kalia, learned Senior Advocate has submitted that the present case would not be covered on the mythology as suggested by the learned Advocate General inasmuch as the view in re: Sanjay Singh (supra) would only be applicable in a case where there is apprehension of examiner variability but in the present case there is no case of examiners' variability for the reason that the answer-sheet would be checked by the Computer only. He has also submitted that since the rules do not prescribe about the "percentile" and it only prescribes the "percentage", therefore, the petitioners may not be declared unsuccessful on the basis of "percentile". In the present case, the petitioners have been declared unsuccessful on the basis of percentile in the wake of new method which is not provided in the rule. As per Sri Kalia, learned Senior Advocate, there is a large difference between the "percentage" and "percentile".
Sri S.K. Kalia has further submitted that had the examination in question been subjective examination and had there been various papers and had those papers been checked by the different examiners, the "method of scaling"/ "Standardized Equi-percentile Method" could have been applied but the present examination is an objective examination and there would not be any subject or examiners variability, therefore "Standardized Equi-percentile Method" should not be applied here. Besides, Sri Kalia has submitted that since the procedure of "Standardized Equi-percentile Method" is not prescribed under the rules, therefore, it could have not been applied in the present examination.
Sri S.K. Kalia, learned Senior Advocate has also submitted that an identical issue was filed before this Hon'ble Court at Allahabad in one writ petition bearing Writ Petition A.No.16160 of 2018; Shiv Kumar and 4 others vs. State of U.P. & others and this Court vide order dated 07.09.2018 has recorded the statement of the State-respondents that the candidates have been called on the basis of raw marks without undertaking normalization score. Since a specific statement of the State-respondents has been recorded by this Court at Allahabad in the aforesaid writ petition of Shiv Kumar and others (supra), therefore, the order dated 07.09.2018 is being reproduced here-in-below:-
"Attention of this Court has been invited to the instructions provided by the learned standing counsel on 15.08.2018, as per which one of the selected candidates, namely, Vikas Saini, apparently has scored lesser marks, but has been selected, while the petitioner, who has scored higher marks, has been left out. With reference to paragraph nos. 6 & 7 of the instructions dated 15.08.2018, it is submitted that persons were called on the basis of 50% raw score, which apparently was prior to the normalization itself. Submission is that as per the respondents, themselves, persons have been called on the basis of raw marks without undertaking normalization score, which would vitiate the entire process; in as much as, 50% marks have been viewed with reference to different question papers. It is also argued that the respondents, themselves, are not sure as to how they have proceeded to conduct the examination, particularly, as much of the task was outsourced to a private agency and the details are, otherwise, not available with the State.
Before this Court proceeds to adjudicate on the issues urged, it would be appropriate to grant one further indulgence to the respondents to examine their records and to file a better affidavit."
As per Sri S.K. Kalia, learned Senior Advocate, the identical matter is pending for final adjudication before this Court at Allahabad.
Having heard the rival submissions and perused both the personal affidavits filed on 25.03.2019 as well as other material on record, I find that the matter requires consideration and the petitioners have got prima-facie case to get the interim relief.
Let the counter affidavit be filed within a period of four weeks. Rejoinder affidavit, if any, may be filed within a period of two weeks thereafter.
List this petition on 15.05.2019 within top five cases along with other connected matters for peremptory hearing if the affidavits are exchanged.
As an interim measure, it is provided that till the next date of listing, no appointment letter shall be issued to the selected candidates pursuant to the select list/ result dated 28.02.2019, which is contained as Annexure No.1 to the writ petition, however, the process of selection which is being undertaken by the State Authorities may go on.
Order Date :- 30.03.2019 Suresh/ [Rajesh Singh Chauhan,J.]