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I. SUBMISSION URGED ON BEHALF OF THE PETITIONER:

9. Mr. Subhash Upadhyaya, learned counsel for the petitioner, would submit that, as the petitioner is relying on the applicable Rules in force, he is not required to challenge its constitutional validity; in terms of Rule 25(2) of the Uttarakhand Public Service Commission Procedure and Conduct of Business Rules, 2013 (for short the "2013 Rules"), suitability of the applicants is required to be judged both at the stage when a screening test is held, and later at the stage of interview; it is in order to adjudge the suitability of candidates that different minimum marks are prescribed; while the minimum marks, which a general category candidate should secure in the screening test, is 35%, it is 30% for the other backward classes and 20% for the Scheduled Castes and the Scheduled Tribes; it is only such of those candidates, who secured the minimum cut-off marks prescribed in the screening test, who were eligible to be called for interview; the mere fact that the marks secured in the screening test is not taken into consideration, and is not added to the marks awarded in the interview, is of no consequence; it is only the petitioner, and the fifth respondent (who belongs to the other backward classes category), who secured more than the minimum cut-off marks prescribed for the general category in the screening test; it is only because lower minimum marks were prescribed for the other backward classes, and the Scheduled Castes, that the other private respondents were found successful in the screening test, though they secured marks lower than minimum cut-off marks prescribed, in the screening test, for the general category; the suitability of the private respondents was judged in the screening test against their respective reserved category posts; as different minimum cut- off marks were prescribed in the screening test, candidates from the reserved category, who secured lower marks than the minimum cut-off marks prescribed for the general category in the screening test, could not have been permitted to migrate to the general category at the stage of interview; as a screening test was held to judge the suitability of candidates, and different minimum cut-off marks were prescribed therein for the general and the reserved categories, separate category-wise lists ought to have been prepared on the basis of marks secured by candidates, belonging to different categories, in the screening test; on completion of the interview, the Uttarakhand Public Service Commission ought to have placed the private respondents in their respective reserved categories/sub-categories; since all the private respondents, other than the fifth respondent, were found suitable in the screening test, and were declared eligible to appear in the interview, even though they had secured lower marks than the minimum cut-off marks prescribed for the general category, they could only have been called for interview against posts earmarked for the reserved categories, and their candidature could only have been considered with respect to posts in their respective reserved categories, and not for posts under the general category; and if such a procedure, of placing reserved category candidates, (who were found suitable in the screening test only under their respective reserved categories), in the merit list of the respective reserved categories had been followed, the petitioner would then have been selected, for appointment as an Assistant Professor (Physical Chemistry) in one of the four available posts under the general category.

12. Mr. Piyush Garg, learned counsel for respondent nos. 4 to 9, would submit that, since the petitioner has not challenged the validity of the Rules, the procedure followed by the Uttarakhand Public Service Commission in selecting candidates, both in the screening test and in the interview, must be examined in the light of the Rules in force; the marks secured by candidates, in the screening test, are not considered while adjudging the suitability of the short-listed candidates in the interview; a screening test has been prescribed only to short-list candidates, to be called for interview, in the ratio of 1:3; once candidates are short-listed, they are all treated at par, and are all eligible to compete, on their merit, in the interview held to select candidates for general category posts; as reservation is provided in favour of the other backward classes and the Scheduled Castes, candidates from these reserved categories are entitled to compete not only for general category posts, but also for posts earmarked in favour of the reserved categories; accepting the petitioner's submission would result in reservation being provided for general category candidates in the interview, excluding those from the Scheduled Castes category who were short-listed for interview on their securing the minimum cut-off marks in the screening test; selection of candidates, for appointment to the posts of Assistant Professor (Physical Chemistry), is only on the basis of the marks secured by them in the interview; selection of candidates in the interview does not depend on the marks secured by them in the screening test; the intention of the Rule, in prescribing a screening test, is only to short-list candidates in each category; accepting the petitioner's contention would result in depriving candidates, from the reserved categories, to be called for interview, and to be considered for selection on their merit for posts in the general category; the Rules prescribe only one common interview for all candidates irrespective of the categories to which they belong; no separate interview is conducted category-wise; consequently while a candidate, who belongs to the general category, is entitled to be considered on his merit for posts in the general category, other candidates, in whose favour vertical/horizontal reservation is provided, are entitled to be considered on their merit for posts in the general category and, in their respective reserved categories, on the basis of reservation provided in their favour; the petitioner participated in the common interview, and was fully aware of the Rules in force; prescription of lower marks in the screening test, for candidates belonging to the reserved categories, is to ensure that candidates from all categories (both general and reserved) are called for interview in the ratio of 1:3; if the minimum cut-off marks, applicable to the general category, were prescribed as the minimum cut-off marks, which all candidates should secure in the screening test, it would result in a situation where candidates from the reserved categories may not be short-listed for interview in the ratio of 1:3; even though lower minimum marks were prescribed, for candidates belonging to the reserved category, the number of candidates called for interview was far lower than the prescribed ratio of 1:3; in terms of Rule 4.1.3(D) only one merit list is required to be prepared on completion of the screening test; Rule 6.2(a) relates to vertical reservation, and Rule 8(A) relates to the preliminary examination; Rule 8(A) does not require the reserved category candidates, selected in the screening test, to be called for interview only against posts reserved for the OBCs and the Scheduled Castes; accepting the petitioner's contention would result in reservation being provided, in favour of the general category, in the interview; since no scheduled tribe candidates secured the minimum cut-off marks, prescribed in the screening test, no candidate from this category was called for interview, though one post was reserved in their favour; the Rules in force specifically require that one combined merit list to be prepared; in the Rules, which fell for consideration before the Supreme Court in the judgments relied on behalf of the petitioner, there was an express bar for a reserved category candidate, who was selected in the screening test/preliminary examination under the reserved category, to migrate to general category posts; even in cases where the Rules are silent, reserved category candidates are entitled to be considered on their merit to be selected in general category posts; in the present case, the Rules specifically require reserved category candidates to be considered for selection, against general category posts, in the interview; since 11 posts were sought to be filled up, a minimum of 33 candidates could have been called for interview in the ratio of 1:3; the Rules in force stipulate that, despite being given the benefit of relaxation of the minimum cut-off marks, a reserved category candidate can be shifted to the general category on the basis of their merit in the interview; the intention of the Rules is that, after a screening test is held, the short-listed candidates should appear in one interview, and one merit list must be prepared consequent thereto; a screening test is held not to adjudge the suitability of the applicants, but to short-list candidates to be called for interview in the ratio of 1:3; with a view to ensure that adequate number of candidates, belonging to the other backward classes and the Scheduled Castes, are called for interview in the ratio of 1:3; relaxation was given to the reserved category candidates in the screening test, and a lower minimum cut-off marks was prescribed therein for their benefit; the judgments relied on by the petitioner declare that the applicable Rules should be followed; unlike an express bar in the Rules/Government Orders, which fell for consideration in those cases, in the present case the Rules require candidates, belonging to the reserved category, to be considered in the interview for posts in the general category; in the absence of an express bar, relaxation, of the minimum cut-off marks, extended to reserved category candidates in the screening test, would not disable such candidates from participating in the interview, and compete on their merit, for posts in the general category; Rule 19(3) of the 2013 Rules requires these posts to be filled up by interview; clause 11 of the advertisement also provides for a screening test to be held to short-list candidates for interview; and screening of candidates, to short-list them for interview, is not an exercise of judging their suitability. Learned counsel would rely on Tej Pal Yadav vs. Union of India & others8; Deepa E.V.3; Chattar Singh6; Jitendra Kumar Singh2; and Dharamveer Tholia & others vs. State of Rajasthan & others9.

24. Condition No. 16 of the advertisement dated 04.08.2017 stipulates that, on the basis of the marks obtained in the Screening Test (if conducted), in accordance with the Rules corresponding to the number of vacant posts, the candidates will be declared successful for interview. The marks obtained in the Screening test will not be added to the marks obtained in the Interview at the time of the final selection result, and the final selection result will be declared only on the basis of the marks obtained in the Interview in accordance with the Rules (giving the benefit of reservation, etc.). Condition No. 17 of the said advertisement provides that, in the screening test/interview, candidates, belonging to the general category, the Uttarakhand Other Backward Classes, the Uttarakhand Scheduled Castes and the Uttarakhand Scheduled Tribes, will be required, compulsorily, to obtain the minimum marks at every level prescribed under the Uttarakhand Examination Result Preparation Rules, 2012 (as amended from time to time). Only candidates, obtaining the minimum prescribed marks, will be considered for inclusion in the merit list.

35. On the candidates, securing the minimum cut-off marks in the screening test [as prescribed in Rule 4.1.3(D)], the Commission is required, on a conjoint reading of Rule 4.1.3(D) and Rule 8(A), to prepare a single merit list of candidates, (successful in the screening test), to be called for interview. As is evident from Condition No.17 of the advertisement dated 04.08.2017, it is only candidates, who obtain the minimum prescribed marks in the screening test, who would be considered for inclusion in the merit list for interview. Condition No. 16 of the said advertisement makes it clear that the marks obtained by candidates, in the screening test, will not be added, to the marks obtained by them in the interview, at the time of final selection. It is thereby made clear that candidates would be selected, for being recommended for appointment to the post of Assistant Professor, solely on the basis of the marks secured by them in the Interview.