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7. Having heard the learned counsel for the parties, I find that the petitioner and respondent No. 4 have obtained 309 marks in aggregate in the written and interview tests held by the U. P. Public Service Commission. Allahabad. While the petitioner had obtained 253 marks in the written test and 56 marks in the interview, the respondent No. 4 had obtained 252 marks in the written test and 57 marks in the interview. Under the Rules of 1944, the Commission is to prepare the list of candidates for direct recruitment in order of their proficiency as disclosed by the aggregate marks finally awarded to each candidate and where two or more candidates obtained equal marks in the aggregate, the Commission shall arrange them in order of merit on the basis of their suitability for the service. Rules 16 and 19 of the Rules of 1944 are reproduced below :

(2) Except for the purpose indicated above, the marks obtained by the candidates in the written test shall not be disclosed to the Members of the Commission who conduct viva voce examination until the examination is over and the marks therefore have been finally awarded.

19. Selection of candidates for direct recruitment. -- The Commission shall prepare a list of the candidates for direct recruitment in order of their proficiency as disclosed by the aggregate marks finally awarded to each candidate. If two or more candidates obtain equal marks in the aggregate the Commission shall arrange them in order of merit on the basis of their general suitability for the service. Subject to the provisions of Rule 21 and to the allocation of posts to communities and classes, the Board shall select the candidates who stand highest in order of merit, provided that 'they are satisfied that the candidates are duly qualified in other respects."

8. Section C of Appendix-C framed under Rule 15 of the Rules of 1944 provides as to how the personality test/viva voce shall be conducted. It includes awarding of marks for general suitability for service also. From a reading of Rules 16 and 19 along with Section C of Appendix-C, it will be seen that while Rule 16 refers for summoning the candidates for interview, who have shown their suitability for appointment in the written test, Rule 19 specifically provides for arrangement of merit list where two or more candidates have obtained equal marks in the aggregate, on the basis of their general suitability for the service and Section C of Appendix-C provides for giving of marks for general suitability for service in the viva voce/personality test. Thus, the marks obtained in the viva voce/personality test/interview has to be considered for placing a person in the merit list where two or more candidates have obtained equal marks in the aggregate. In this view of the matter, the action of U. P. Public Service Commission, Allahabad, in placing the petitioner below the respondent No. 4 cannot be said to suffer from any infirmity in law. Reliance placed by Sri Khare on the decision of Vinay Khare (supra) is misplaced as the said decision has subsequently been overruled by a Division Bench of this Court in the case of Km. Manju Trivedi (supra). In the case of Km. Manju Trivedi (supra) this Court has held as follows :

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(1) Rule, which has prescribed the criteria for selection on the basis of the marks obtained in the interview when two or more candidates have secured equal marks in the aggregate has been amended.
(2) The only person, who is affected by the unamended rule is Vinay Khare, who has already been appointed as Munsif about two years ago ; and (3) The other affected person, namely, Zameer Ahmad and Km. Manju Trivedi have not challenged their non-selection.

All these assumptions were unwarranted being contrary to the reality. This is clear from the following admitted facts :